OD FLASH | An employee who works on their own initiative while on sick leave must prove the harm suffered to obtain compensation

Cour de cassation, civile, Chambre sociale, 1 juillet 2026, 25-15.732, Publié au bulletin – Légifrance

An employee, who was terminated for unfitness for work, filed a claim with the labor court to challenge her termination and seek payment of various sums. Among her claims, she sought damages due to her employer’s alleged failure to fulfill its duty of care. She accused her employer of allowing her to work while she was on sick leave.

The Court of Appeals dismissed this claim. While the court noted that the employee had indeed performed certain tasks during her sick leave, it found that this activity did not result from any request or instruction from the employer, but rather from the employee’s own initiative. The judges also held that the employee provided no evidence to substantiate the harm she claimed to have suffered as a result of this situation.

The employee filed an appeal with the Court of Cassation. She argued that the mere fact that an employee works while on sick leave is sufficient to establish a breach by the employer of its duty of care. In her view, such a breach necessarily entitles the employee to compensation, without the need to prove separate harm.

The Court of Cassation dismissed the appeal. It upheld the Court of Appeals’ finding that the employee had worked on her own initiative during her sick leave and reiterated that it is up to the trial court judges to exercise their discretion in assessing the reality and extent of the alleged harm. In this case, since the employee failed to demonstrate the existence of harm, her claim for damages could not succeed.

With this decision, the Supreme Court confirms that the mere fact that work was performed during a sick leave period is not sufficient to establish a right to compensation. When an employee has taken the initiative to work, it is up to the employee to establish that this situation actually caused harm linked to the employer’s alleged breach of duty.

This decision is consistent with recent case law of the Court of Cassation, which no longer systematically presumes the existence of harm. Even in the event of a breach of a legal obligation by the employer, the employee must—except in cases where the law or case law automatically recognizes harm—concretely demonstrate the harm suffered in order to obtain compensation. The ruling also notes that, in practice, the fact that the employee worked on his or her own initiative is a decisive factor in the judge’s assessment.