A proposal for a mutually agreed termination during a period of sick leave does not, in and of itself, constitute substantial evidence suggesting the existence of discrimination based on health status

The Court of Cassation holds that offering an employee a mutually agreed termination during a sick leave period cannot be construed as evidence of discrimination based on health status, even if the employer reiterated the offer of mutually agreed termination before proceeding with a dismissal for prolonged absence (Court of Cassation, Civil Division, Labor Chamber, June 17, 2026, 25-12.181).

An employer offers an employee on sick leave a mutually agreed termination. The employer persists by reiterating the offer, but no agreement is reached. The employer then terminates the employee’s employment for prolonged absence (which disrupts the company’s operations). The employee challenges the termination, arguing that it is discriminatory because it is based on his health condition. To provide evidence suggesting discrimination, the employee cites the multiple offers of termination by mutual agreement made during his sick leave.

The Court of Appeals held that the termination was discriminatory because the employer could not justify the reasons that led it to repeatedly offer a mutually agreed termination to an employee on sick leave. The Court of Appeals found that the offers constituted evidence of discrimination and that it was up to the employer to demonstrate that these offers were not based on the employee’s health condition.

The Court of Cassation overturned the ruling on the grounds that proposing a mutually agreed termination during a period of sick leave is not, in and of itself, sufficient to suggest discrimination based on health status. Consequently, the employer cannot be required to provide objective evidence to demonstrate that its proposal is not related to the employee’s health status.

It should be noted that case law implicitly upheld mutual terminations occurring during sick leave (Court of Cassation, Civil Division, Labor Chamber, September 30, 2013, No. 12-19.711), given that it also upholds mutual terminations during leave for an occupational illness or work-related accident (Court of Cassation, Civil Division, Social Chamber, September 30, 2014, No. 13-16.297) and even when a determination of incapacity has been issued (Court of Cassation, Civil Division, Social Chamber, May 9, 2019, No. 17-28.767), provided that no defect in consent has been demonstrated.

For example, pressure exerted to sign a mutual termination agreement (Court of Cassation, Civil Division, Labor Chamber, July 8, 2020, No. 19-15.441) or impaired mental capacity (Court of Cassation, Civil Division, Labor Chamber, May 16, 2018, 16-25.852).

At a time when the cost of a mutually agreed termination has increased for employers (the specific employer contribution due on the mutually agreed termination severance pay has risen from 30% to 40%) and employees who sign a mutually agreed termination agreement will be covered by France Travail for a shorter period starting September 1, 2026 (for example, the maximum benefit period will be 15 months instead of 18 months for those under 55), the June 17, 2026, ruling serves as a reminder that this method of termination remains advantageous in certain circumstances.

Conclusion: A mutual termination agreement may, in the absence of a defect in consent, be entered into during a period of sick leave without being considered discriminatory.