The Constitutional Council censures the early termination of a fixed-term or temporary contract for lack of a health pass

"By providing that the failure to present a health pass constitutes a cause of early termination of only fixed-term or mission contracts, the legislator has instituted a difference in treatment between employees depending on the nature of their employment contracts which is unrelated to the objective pursued ", indicates the Constitutional Council.

The Sages stress that the legislator "intended to exclude" that the lack of pass "could constitute a real and serious cause of dismissal of an employee in contract of indefinite duration", provision a time envisaged by the government but deleted during the legislative course .

They consider that the procedure for the suspension of the employment contract without remuneration for the employees concerned by the obligation of health pass is not contrary to the Constitution.

They observe in particular that the measure is temporary, the obligation of the pass does not run until November 15, that the suspension ends when the employee produces "the required supporting documents" or that an employee may be offered another position. within the company.

"Consequently, the complaints based on the disregard of the aforementioned constitutional requirements must be rejected", underlines the Council.

The Ministry of Labor welcomed to AFP the validation by the Wise Men of the measures planned "to encourage employees to be vaccinated and facilitate the implementation of new obligations" to fight against the epidemic.

"So many solutions are available to employers and employees: leave of absence to get vaccinated, interview between employer and employee, use of days off or RTT, temporary assignment to another position, recourse teleworking, suspension of the employment contract while the employee complies with his obligations, "the same source pointed out.

"The text adopted by Parliament, however, provided for a difference in treatment between the CDD and the CDI that the Constitutional Council did not consider justified. The suspension may apply but the CDD may not be interrupted before its end", the ministry continued.

However, the decision of the Wise Men does not change the fact that the common law of the Labor Code can apply in matters of dismissal, believe some lawyers, like Deborah David, a lawyer specializing in labor law.

The only lack of sanitary pass "is not a real and serious cause of dismissal", but other reasons may be valid, although employers should only dismiss in cases of "extreme necessity" and "extremely well. motivate the decision, "she told AFP.

But for Christophe Noël, lawyer specializing in labor law, he is "not at all sure that common law applies", which creates "terrible legal insecurity".

"In principle, common law authorizes an employer to dismiss an employee whose contract is suspended too long or if this causes a marked disturbance in the company", but it is not certain that we can dismiss employees on these reasons, he said, adding to be convinced that "the decisions will be disparate because the law is screwed up".