Best practices in employment law: Medical certificate and dismissal, a thorny issue

What should I do if my employee provides me with a medical certificate when he/she has just been dismissed?

In practice, when companies dismiss an employee, they are often confronted with the situation where the employee quickly submits a medical certificate stating that he/she is unable to work. In some cases, this certificate covers a period that includes the date of dismissal. In addition to the issue of the validity of the dismissal in such cases, there is also the question of the effective date of termination of the employment relationship (suspension of the notice period as a result of the incapacity) and entitlement to salary. In certain situations, the employer may also have doubts about the validity of the incapacity to work. In such cases, the employer has the means to verify the veracity of the certificate. Finally, an employee who is already prevented from working (e.g. because of depression) may have a skiing accident that warrants a further period off protection.

The right thing to do: ask the right questions!

All these situations require the employer to analyse the employee's situation in detail, on the basis of the contractual documents, the law and any collective labour agreement/framework contract. It is essential that they ask themselves the right questions, such as :

- Is the dismissal null and void or is the notice period simply suspended?
- Do I have to pay my employee 100% of his/her salary or a reduced percentage?
- For how long is my employee entitled to his/her salary?
- How long is a medical certificate valid for?
- How do you calculate the suspension of the notice period?
- What is my employee's protection period?
- My employee gives me a medical certificate stating that he/she is on accident leave when he/she is already on sick leave. What does this imply?
- What can I do if I have doubts about the truth of my employee's incapacity for work?
- Do I have the right to ask my employee the exact reason for his/her incapacity for work?
- etc.

Answering these questions precisely and accurately will enable the employer not to violate the employee's rights and thus avoid future litigation. On the other hand, it will be able to determine precisely the impact of the employee's incapacity for work on the continuity of operations and the potential steps to be taken.

Recommendations

If you find yourself in one of the above situations, we strongly recommend that you:

• Check whether the letter of termination was served on the employee while he/she was covered by a valid medical certificate. If this is the case, the termination is null and void.
• Keep medical certificates carefully. They will help you determine whether the incapacity is due to the same cause (illness) or to several causes (e.g. illness and accident). Bear in mind, however, that two successive medical certificates may cover two different causes of incapacity, even if they both mention "illness" (e.g. influenza followed by appendicitis);
• Determine the length of the period of protection. According to the Code of Obligations, this is 30 days during the 1st year of service, 90 days from the 2nd to the 5th year of service and 180 days from the 6th year of service.
• Calculate the projected effective date of termination of the employment relationship on the basis of the medical certificates, the protection period and the length of the statutory or contractual leave period. If your employee sends you a new medical certificate, the situation will need to be reassessed.

How can we help

In advance of a specific case, we can help you:

• Make an inventory of the applicable contractual provisions and ensure that they correspond to the company's needs;
• Organise in-house training sessions to raise awareness among the people in charge of human resources of the various issues they may face and ensure that they are familiar with the applicable contractual and legal provisions.

When you face a specific case, we help you :

• To analyse the case in detail with you and make the necessary calculations (protection period and effective date of termination employment relationship);
• To identify the risks you face
• To recommend the best way to proceed in order to best protect your company's interests;
• Throughout the process until the actual end of the employment relationship or the conclusion of any agreement.