The Constitutional Council issued this Thursday, August 5, 2021 its decision on the health pass. It validates the vaccination compulsory care providers as well as the extension of sanitary pass which will become compulsory from August 9 to have access to restaurants, café terraces or to travel by train. However, the Sages censured the early termination of temporary contracts and fixed-term contracts as well as the isolation of positive people in Covid-19.
Did the Constitutional Council reject the dismissal of precarious contracts?
He returned to the difference in treatment between employees in the sectors affected by the health pass. For those on CDI, the law provided for a suspension while the CDD and temporary workers risked dismissal. Unacceptable for the Wise Men, who saw in it a difference in treatment incompatible with the principle of equality enshrined in the Universal Declaration of Human Rights.
Can unvaccinated people still lose their jobs?
Yes, but everything will depend on the causes invoked. The law no longer provides for the dismissal of an employee who has the obligation to be vaccinated but refuses to do so.
The Labor Code, however, leaves the door ajar. “The industrial tribunals risk rendering disparate decisions, warns Christophe Noël, an employment law lawyer specializing in disputes before these courts. Employers will always be able to claim that the absence of the suspended employee can create an objective disturbance in the company to justify the dismissal. Today, this is the case for drivers who lose their license or people on extended absence. “
A delicate situation for Déborah David, associate lawyer at De Gaulle Fleurance et associés: “Employers will have to be careful and motivate the dismissal extremely well.”, she warns. In fact, in its opinion, the Constitutional Council recalls that the law excludes that the lack of password could constitute a real and serious cause of dismissal
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The Ministry of Labor wants to avoid these situations and favor alternatives to the suspension of a position, such as the use of days off or assignment to another position. “If we notice any difficulties or abuses in the coming months, we will have to supervise things, in conjunction with Parliament”, indicates the cabinet of Elisabeth Borne.
What about civil servants?
Subject to public law, the civil servants and contractors concerned have little risk of being struck off if they do not get vaccinated. According to the specialists interviewed, disciplinary sanctions are to be expected but the dismissal seems disproportionate in the current case.
Who will pay for the PCR tests?
Nothing is defined yet. “It is possible that it is the employer, since he already takes care of the time spent by the employee to go to be vaccinated”, says Deborah David. Same observation for Christophe Noël: “We have to wait for the application decrees. In principle, an employee does not pay for the right to work. So it would be up to the employer to pay. “
The ministry is more clear-cut “ It is a personal choice not to be vaccinated. It is therefore not up to the employer to finance the tests. “
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