A mutual termination (rupture conventionnelle) may validly be agreed while the contract is suspended for sickness, subject only to fraud or a defect in consent ; the employee remains free to accept or refuse. That freedom sits alongside the prohibition on discrimination : no termination may be based on an employee’s state of health, and the employee benefits from a lightened burden of proof, only needing to establish facts suggesting discrimination before the employer must justify its decision.
In this case, the employer had twice proposed a mutual termination – once during the employee’s sick leave – and then dismissed him for a prolonged absence disrupting the business. The Court of Appeal inferred a presumption of discrimination on health grounds from the repeated offers followed by dismissal, in the absence of objective evidence from the employer.
The Court of Cassation struck down that analysis. Offering a mutual termination during sick leave is not, in itself, a factual element suggesting discrimination on grounds of health ; the burden-shifting mechanism is therefore not triggered by that fact alone, and the employer need not justify itself on that basis.
The point should nonetheless be handled with care. The offer must not be coupled with other elements – remarks, pressure, context – that, taken together, would suggest discrimination ; the employee’s consent must remain free.
Cass. soc., 17 June 2026, no. 25-12.181
