During sick leave, the employment contract is suspended and the employee is released from working : the employer may neither require nor even request work during that period. Since 2024, the Court of Cassation has held that the mere finding that an employer requires an employee to work during sick leave gives a right to compensation, without the employee having to prove any loss. This is an exception to the general rule that the employee must establish the existence and extent of the harm claimed.
In this case, a medical secretariat manager, dismissed for unfitness to work, sought damages for breach of the employer’s duty to ensure her safety : her attendance record showed that she had worked during her sick leave, without any reprimand from the employer. The Court of Appeal found that she had done so on her own initiative and held that she had not shown any actual loss.
The Court of Cassation upheld that decision. The automatic right to compensation is confined to cases where the employer « has the employee work” ; where the employee works of their own accord, the ordinary rules apply and the employee must prove the reality and extent of the harm suffered.
