Are you faced with an employee who has been absent for a long period of time and are worried that he or she may be declared unfit for work? Or perhaps one of your employees has already been declared unfit for work by the company doctor? The issue of unfitness for work is a delicate one, and the key often lies in the opinion drawn up by the occupational physician.
Here are some key points to remember:
- Terms of the Notice of Incapacity
Particular care needs to be taken when implementing the unfitness procedure, and in particular when drafting the opinion issued by the occupational physician.
Depending on the terms used by the doctor, you may or may not be exempted from your obligation to find a new job.
Legal provisions stipulate that an employee may be dismissed for unfitness in the following cases:
- The employer is unable to offer the employee a job that meets the criteria set out in the French Labor Code ;
- The employee refused to be reclassified in such a job;
- The occupational physician’s opinion of unfitness expressly stated that “keeping the employee in a job would be seriously detrimental to his or her health, or that the employee’s state of health makes it impossible to reclassify him or her in a job”.
If the occupational physician indicates exactly these last points in the notice of unfitness, then the Cour de cassation considers that the employer is exempted from the obligation to look for an alternative position for the employee declared unfit. Instead, he can immediately initiate the procedure for dismissing the employee for unfitness.
In a ruling handed down last September, the French Supreme Court firmly reiterated that if the terms of this notice do not exactly reflect the terms of the legal provisions, the employer cannot validly consider himself exempt from this reclassification obligation.
In this situation, the doctor had indicated that ” any continuation of the employee’s employment with this company would be seriously detrimental to his health “.
As the doctor had not exactly reproduced the legal provisions, the employer was not relieved of his obligation to reclassify the employee, and should therefore have looked for a position to reclassify him.
The dismissal is therefore without real and serious cause and the employee must receive the compensation due for such a dismissal.
- Reclassification: An Imperative with Exceptions
⚠ Caution: The employer’s obligation to find a new job is a public policy obligation, which can only be derogated from by strictly applying the cases defined by law.
Employees declared unfit for work can only be dismissed as a last resort.
- A reminder about Abusive Refusal
- Important: The Cour de cassation has issued another important ruling on incapacity, which should also be borne in mind.
An employee who has been declared unfit for work as a result of an industrial accident or occupational disease loses his or her specific benefits if he or she refuses, without valid reason, an outplacement position suited to his or her abilities. However, the employer’s mere attempt to reclassify the employee does not constitute abuse. The employee’s refusal must be clearly abusive for him to lose his rights.
To qualify as an abuse of this kind, the employee must refuse, without legitimate reason, a position that is suited to his or her abilities and comparable to the job he or she previously held, and that complies with the occupational physician’s recommendations.
Dismissal on grounds of unfitness is a delicate procedure, fraught with pitfalls.
DESRUMAUX AVOCATS is at your disposal to support and advise you in such proceedings.
