An employer that could not show that there were objective grounds for terminating the trial period of an employee who was away on sick leave at the time was found guilty of discrimination against him on the grounds of ill-health. 

In this case, an employee complained about the surprising co-incidence of his taking a period of sick leave and his trial period suddenly being terminated.  He noted that no comments had ever been made about the quality of his work while he was well enough to attend work.   This suggested to him that he had been discriminated against as a result of his health.

The provisions of Article L.1132-1 of the French Employment Code relating to discrimination apply during trial periods just as much as to confirmed permanent employments.  The burden of proof was therefore placed on the employer to show that the termination was objectively justifiable by reference to non-discriminatory factors.    In its defence, it argued that the employee had not been carrying out his work to a satisfactory level.  However, when put to the test the allegations against the employee – which in this case related to expired products being left on the shelves – turned out to be limited to a single day and were contested by him anyway.  Even if the employer’s factual allegation was right, this was still not the sort of professional misconduct which would have justified the termination of his trial period. 

Consequently the employer’s decision to terminate the employee’s trial period was held to be void.  The employee did not wish to be reinstated (one can hardly blame him) but still received damages equivalent to one month’s salary.    And the moral of the story?  Even in trial or probationary periods it is important in order to rebut possible discrimination allegations that the employer should have objective evidence of meaningful defaults or shortcomings in the new employee’s conduct or competence.