2) The decision of the Paris Court of Appeal of April 7th, 2021

By a judgment dated April 7, 2021, the Paris Court of Appeal:

. Reverses the judgment;

Resolving again and adding thereto:

. Declare the dismissal of Mr. X to be null;

. Orders his reinstatement;

. Sets the average gross salary of Mr. X at the sum of 3,314.86 euros per month.

Consequently, condemns the company of the Palais omnisports de Paris-Bercy to pay Mr. X the following sums:

- 177,543.90 euros for eviction compensation from August 26, 2016 to February 10, 2021;

- 3,314.86 euros per month from February 10, 2021 until final reinstatement;

- 10,000 euros in damages for discrimination.

. Holds that these sums will be matched with interest at the legal rate from the delivery of this judgment;

. Reject all other requests.

The company of the Palais omnisports de Paris-Bercy will be ordered to pay the costs and pay Mr. X the sum of 2,500 euros under Article 700 of the Code of Civil Procedure.

In total, the versatile operating technician from the Palais omnisports de Paris-Bercy company obtains the sum of 193,358.76 euros gross.

2.1) On the invalidity of the dismissal due to discrimination linked to the state of health of the POPB technician

The Paris Court of Appeal recalls that "the dismissal, which sets the limits of the dispute, states:

“As you know, you were hired as a telephony technician, effective September 1, 1991.

Since September 1, 2015, you have held the position of versatile technician, within the “sound”, “light” and “video” control rooms of the Company.

On April 28, 2016, at 4:32 p.m., our security staff caught you urinating in an electric cable passageway in the immediate vicinity of emergency exit no. 3301 in the "media" area.

Such behavior is of course contrary to the behavior that any company can expect from any employee.

In addition, the facts observed could have had serious and detrimental consequences for the company:

- in terms of hygiene and safety: you have urinated in a chute used for the passage of electric cables;

- in terms of image: you relieved yourself at a passageway in the arena where, at any time, service providers or customers were able to surprise you.

Such facts are detrimental to the proper functioning of our establishment and the explanations you provided to us during the interview did not change our assessment of your behavior.

During this interview, you produced a medical certificate from your attending physician

dated May 9, 2016.

This certificate attests that you suffer from a condition which remains to be diagnosed by a blood test and additional examinations, and which does not allow you to hold your urine for long.

In support of this certificate, you explained to us that you had been on the phone with a company provider for too long and could not hold you to the nearest restroom.

If we hear the medical explanations provided, we believe that you should have alerted your supervisor immediately after the incident, which you did not do, and the cleaning staff.

In addition, you have not approached the occupational physician so that he can check your suitability for this position, or adapt your position, if necessary.

In this context, we hereby notify you of your dismissal for real and serious cause ”.

The Paris Court of Appeal continued by declaring that, according to “article L.1132-1 of the Labor Code, no employee may be dismissed or be the subject of a discriminatory measure, direct or indirect, due to their origin, their sex, their customs, their sexual orientation or identity, their age, their marital status, or their pregnancy, their genetic characteristics, their belonging or non-belonging, true or supposed, to an ethnic group, a nation or a race, of its political opinions, its trade union or mutualist activities, its religious convictions, its physical appearance, its family name or because of its state of health or its handicap.

It is recalled that in application of the provisions of article L.1132-4 of this same code, any act taken in disregard of these provisions is null.

Article L.1134-1 of the Labor Code also provides that when a dispute arises due to disregard of these provisions, the employee presents factual elements suggesting the existence of direct or indirect discrimination.

In view of these elements, it is for the defendant to prove that its decision is justified by objective elements unrelated to any discrimination.

Mr. X, who requests the nullity of his dismissal and his reinstatement, maintains that he was dismissed because of his state of health, the facts alleged in the dismissal letter being according to him directly related to the urinary difficulties of which he has reports to the employer during the preliminary interview.

He produced for debate the medical certificate from his attending physician of May 9, 2016, which indicated urinary difficulties which justify an upcoming blood test, which he produced to the employer during the interview prior to the dismissal on May 10.

These facts alone suggest the existence of discrimination.

However, the employer expressly recognizes in the letter of dismissal that he was informed before the dismissal, by the production of the medical certificate of May 9, 2016, of the state of health of the employee which could have a direct or partially direct link with the alleged facts, the company therefore not being able to dismiss him without having previously had his incapacity declared by the occupational physician.

It follows that the employee was the victim of a discriminatory measure related to his state of health; by reversing the judgment, the dismissal must be declared void.

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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com



.Paris: 34 rue Pétrelle 75009 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083