D6a27 - Is the employee protected against dismissal if he falls ill after being convened to attend the pre-dismissal interview?

No.

The presentation of a certificate of incapacity for work following receipt of the letter convening the employee to the pre-dismissal interview does not in any way affect the validity of the dismissal procedure embarked upon.

Once the letter convening the employee to the pre-dismissal interview has been served, the employee cannot then escape the dismissal procedure that has been started by declaring himself sick after receipt of that letter.

By virtue of Article L.121-6(4), the dismissal or the convening notice to the pre-dismissal interview cannot be annulled by the employee by giving notice to the employer or by producing a certificate of incapacity for work, except in the case of urgent hospitalisation of the employee (Draft Law No 3222 on employment contracts, page 30 and no 3222-9, page 6).

Protection against dismissal is not applicable where the employer has posted the convening letter to the pre-dismissal interview before a report of the sickness is received. The dismissal procedure, in such case, has been validly initiated and the employer may pursue it.

The labour court has pointed out that “the employee having been duly summoned to the pre-dismissal interview at a time when he was not ill, he cannot in principle invoke either the irregularity of the notification of the convening notice or that of the termination effected thereafter within the legal time limits, on the ground that he was ill at the time of dispatch of the termination letter” and that a medical certificate produced after receipt of the convening letter to the pre-dismissal interview was not capable of “halting the dismissal procedure initiated (...) by the sending of the convening letter to the pre-dismissal interview”.

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