Dismissal for unfitness: linking the challenge to the employer’s breach of safety obligation

(Cass. Soc. 24 avril 2024, n°22-19401 FS-B)  1/ When an employee contests his dismissal for unfitness, he can invoke a breach of his employer's safety obligation in support of his claim. As a reminder, in the event of unfitness established by occupational medicine, Articles L. 1226-2-1 and L. 1226-12 of the French Labor Code stipulate that the employer may proceed with dismissal:

• If it is impossible to redeploy the employee, after having tried to find a redeployment position in line with the recommendations of the occupational physician;
• Or if the occupational physician's opinion of unfitness expressly states 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 find another job.

When the employee succeeds in demonstrating, on the one hand, the occurrence of a breach by the employer of its safety obligation, and on the other hand, that the dismissal for unfitness resulted therefrom, then the latter is deemed to be devoid of real and serious cause (Cass. soc. September 26, 2012, no. 11-14742, BC V no. 236; Cass. soc. May 3, 2018, no. 16-26850 and 17-10306, BC V no. 72).   2/ However, the limitation periods attached to actions concerning the breach and performance of the employment contract are different: (L. 1471-1 of the French Labour Code)

• Any action relating to the termination of an employment contract is time-barred twelve months after notification of the termination.
• Any action relating to the performance of an employment contract is time-barred after two years from the date on which the claimant knew or ought to have known of the facts enabling him to exercise his right.

  3/ How are these limitation periods to be applied when an employee brings a claim before a labour tribunal to contest his dismissal for unfitness within the 12-month time limit, claiming that the employer has failed to meet his safety obligation, and in so doing, that the facts date back more than 2 years? This question was answered by the French Supreme Court on April 24, 2024.   4/ In this case, the applicant had :

• Was placed on sick leave as of February 20, 2013,
• Declared unfit on October 5, 2015,
• Dismissed for unfitness on December 23, 2015,
• On May 18, 2016, he brought a claim before the industrial tribunal for €50,000 for lack of real and serious cause for his dismissal.

The Court of Appeal had found that the claimant had necessarily been aware of her employer's breaches of safety obligation on the date of her first sick leave, February 20, 2013, and that her claims in this respect had therefore been time-barred since February 20, 2015, i.e. 2 years later. The Court concluded that the claimant could not rely on this breach of her employer's safety obligation, which was time-barred, to contest her dismissal for unfitness, and therefore ruled that all her claims were time-barred.   Note that at that time, the Labor Code set a single 2-year limitation period for any action relating to the performance or termination of the employment contract (Article L. 1471-1 of the Labor Code in the version resulting from Law 2013-504 of June 14, 2013).   5/ In her appeal, the employee argued that the limitation period for contesting a dismissal necessarily ran from the date of notification, contrary to the Court of Appeal's ruling. The Court of Cassation agreed, censuring the decision of the trial judges. In his ruling, he points out that the limitation period for contesting dismissal for unfitness begins on the date of notification of the dismissal. It follows that if an employee contests his dismissal for unfitness within the time limit, he is entitled to argue that the unfitness is the consequence of a breach by the employer of his safety obligation, even if the breach dates back a long time.   6/ On the other hand, the claim for damages for the employer's breach of his safety obligation was deemed time-barred. The employee argued that the starting point of the limitation period was the date on which she became aware of the effects of the employer's actions on her health, and that this starting point could not be earlier than the date of the declaration of unfitness (made in October 2015). As her legal action had been brought in May 2016, the limitation period had not, in her view, expired. On this point, the Cour de cassation rejected the employee's claim and approved the decision of the lower courts to uphold the expiry of the limitation period. The High Court thus considered that the judges, in the exercise of their sovereign discretion, had validly considered that the employee had been aware of the employer's breaches of safety obligation on the date she stopped work on February 20, 2013. Accordingly, the employer's breaches of its safety obligation had been time-barred since February 20, 2015.