The GDPR has become a central argument in employment disputes, with employees increasingly relying on the right of access (Article 15) to obtain their work mailbox.

While the right of access is typically invoked in post-termination litigation, the GDPR is no less relevant to the day-to-day management of the employment relationship, where its requirements warrant close attention from employers.

In this case, the question was whether an employer’s breach of the GDPR automatically entitles the employee to damages, under the French doctrine of “necessary harm” (préjudice nécessaire), whereby damage is inferred from the breach alone.

For the Supreme Court, the employer’s breach of the GDPR does not, by itself, entitle an employee to compensation. The employee must prove the damage suffered and show that it was caused by the breach.

The French Supreme Court had long applied this doctrine in many areas of employment law. Since a ruling of April 13, 2016, it has moved away from it, leaving it to the lower courts to assess whether damage actually exists[1]. The Court has nevertheless revived the doctrine for certain types of breaches, while refusing to extend it any further. It now survives only in limited areas, such as rest breaks or trade-union discrimination, and has been rejected for medical follow-up and training obligations[2].

In this case, a bank employee was dismissed on March 29, 2019 for misconduct, in particular for deliberately clicking on the suspicious link in six tests of a phishing-awareness campaign and entering insulting terms as login details. He argued that he had not consented to the processing of his data by the external provider running the campaign.

The Paris Court of Appeal found that the data had been collected in breach of the GDPR, but admitted the evidence as indispensable and proportionate, and upheld the dismissal. It nevertheless awarded the employee €5,000, ruling that the breach had “necessarily caused” him harm[3].

The French Supreme Court disagreed. Relying on Article 82(1) of the GDPR and on the case law of the Court of Justice of the European Union, which requires the claimant to prove the damage actually suffered and excludes any punitive purpose[4], it held that “the mere infringement of the General Data Protection Regulation does not, in itself, give rise to a right to compensation”. The employee must therefore prove that the breach caused him material or non-material damage. The case was remanded to the Paris Court of Appeal on this point.

We can infer from this that this requirement applies to any breach of the GDPR, whether it concerns the principles governing the processing of data or the exercise of data subjects’ rights, such as the right of access. It does not mean, however, that a breach goes unsanctioned, since administrative fines do not require proof of individual damage.

Actance remains at your disposal to discuss these matters.

[1] Cass. soc., April 13, 2016, No. 14-28.293.

[2] Cass. soc., September 4, 2024, No. 23-15.944 (rest breaks) and No. 22-16.129 (medical follow-up); Cass. soc., September 10, 2025, No. 23-21.124 (trade-union discrimination).

[3] Paris Court of Appeal, October 30, 2024, No. 22/01494.

[4] CJEU, May 4, 2023, C-300/21, Österreichische Post; CJEU, January 25, 2024, C-687/21, MediaMarktSaturn.

When an employer is faced with an employee’s long-term absences due to illness, it may consider dismissing the employee without waiting for the employee to be declared unfit for their position, provided that the following conditions are met:

• long-term or repeated absences due to sick leaves;
• which disrupts the company’s operations;
• and which requires the employee to be permanently replaced within a reasonable period following the dismissal.

However, these conditions are difficult to satisfy cumulatively, as French courts assess them particularly strictly. As a result, employers relying on this ground for dismissal frequently face litigation. In such cases, employees sometimes seek to have the dismissal declared null and void. The argument may appear compelling: if the dismissal is ultimately found to be unjustified, the true reason for the termination may in fact be the employee’s absences, which are related to his health. The termination of the employment contract could therefore amount to discrimination based on the employee’s health. 

The stakes are significant, since a finding of nullity entitles the employee to seek and obtain reinstatement or, failing that, to compensation of at least six months’ salary, which is not subject to the statutory cap on unfair dismissal awards (the so-called “Macron scale”) (Article L. 1235-3-1 of the French Labour Code). 

In a recent judgment (9 September 2026, No. 25-14.356), the French Supreme Court rejected this automatic reasoning and held that the fact that a dismissal on this ground is unjustified does not, in itself, render the dismissal null and void.

In the case at hand, the employee had been placed on sick leave on several occasions between 28 January 2019 and 29 September 2020. On 7 January 2021, the employer dismissed her on the grounds that her long-term and repeated absences had disrupted the business and that she needed to be permanently replaced. 

The employee challenged her dismissal, which the Court of Appeal subsequently declared null and void. Reiterating that the burden rested on the employer to establish that the dismissal was unrelated to any discrimination, the Court held that the employer “(…) had failed to provide the evidence, which it was required to produce, either of the disruption to the business resulting from the employee’s long-term absence or of her permanent replacement”. It concluded that the dismissal for long-term absences was not justified by circumstances unrelated to discrimination, and that discrimination was therefore established and the dismissal null and void.

The Supreme Court disagreed and partially set aside the Court of Appeal’s judgment, holding that “a dismissal on the ground that the business has been disrupted by the employee’s repeated or long-term absence due to illness, making it necessary to replace the employee permanently, does not, in itself, constitute material evidence giving rise to a presumption of discrimination on grounds of health”.

The Supreme Court further emphasized that, even where the employer fails to establish such disruption and the employee’s replacement within a reasonable period, “the dismissal is not null and void, but is without real and serious cause”. 

This decision therefore provides greater legal certainty for employers who may need to dismiss an employee whose long-term or repeated absences due to sick leave disrupt company’s operations and necessitate permanent replacement. Caution is nevertheless warranted where other circumstances surrounding the dismissal could suggest discrimination on grounds of health. 

The lawyers at Actance law firm are available to assist you and help ensure that your dismissal procedures comply with applicable legal requirements.