Appeal against a notice of unfitness […]

(Cass. Soc., December 7, 2022, n°21-11.948 FS-D, C. c/ Sté le Belvédère)

Unfitness is the physical or psychological inability of an employee to hold a job. It is measured by the occupational physician, by comparing the employee’s state of health with the workstation he or she occupies. Since the 1^st As of January 1, 2017, the employee has the right to bring an action before the judicial judge, via an appeal to the summary jurisdiction of the Labor Court, for the purpose of contesting the opinions, proposals, written conclusions or indications issued by the occupational physician based on medical evidence (art. L 4624-7 I of the Labour Code).

The judge may, if he or she deems it necessary, entrust an investigation to the medical inspector (art. L 4624-7 II of the Labour Code). At the end of this procedure, the industrial tribunal issues an opinion that replaces that of the occupational physician (art. 4624-7, III of the Labor Code).

However, in order to make his decision, the judge is not obliged to stick to the conclusions of the medical inspector whose expertise he has requested; he may rely on other elements and in particular on the report of the doctor mandated by the employer. This is what emerges from the decision rendered by the social chamber of the Court of Cassation in a judgment dated December 7, 2022. (Cass. Soc., December 7, 2022, n°21-11.948 FS-D)

I. A notice of unfitness contested by a disabled worker

In this case, the facts concerned an employee who was born with a disability resulting in the absence of a right arm. Employed as cleaning staff in a nursing home, the employee was recognized as being in the first category of disability and then placed on sick leave several times due to pain in her left shoulder, which was overstressed because of her disability. The latter was finally declared unfit by the occupational physician, with no possibility of reclassification.

The employee, who was 49 years old at the time and wished to continue working, appealed to the Conseil de Prud’hommes against this notice of unfitness, which ordered an expert opinion and appointed a medical inspector. The latter was responsible for determining whether the employee’s condition had deteriorated since her hiring and whether she could return to her job. The expert physician examined the employee in the presence of an occupational physician mandated by the employer as authorized by article L 4624-7 II of the Labor Code. The expert physician concluded that the employee was fit to work, while the occupational physician appointed by the employer concluded that her state of health had worsened. The Conseil de Prud’hommes decided: it followed the conclusions of the medical expert and found that the employee was fit for her job. It therefore ordered the employer to reinstate the employee in the company’s workforce.

II. Is the labour judge obliged to follow the conclusions of the medical expert?

The Court of Appeal, seized of the dispute by the employer, did not follow the conclusions of the medical inspector and, on the contrary, confirmed the opinion of unfitness issued by the occupational physician. It justified its decision by noting a risk of developing a disabling handicap likely to place the employee in a state of dependence if she were to remain in her job, notwithstanding the recommended accommodations. The court also noted that the preservation of his autonomy excluded the maintenance in a job likely to generate musculoskeletal disorders.

The question submitted to the Court of Cassation in this judgment was whether, when requesting the expertise of the medical inspector, the judge was free to follow the latter’s conclusions or not?

The Court of Cassation confirmed this decision and rejected the appeal lodged by the employee, who complained that the court had wrongly based itself exclusively on the conclusions of the expert report drawn up by the occupational physician commissioned by the employer and had set aside the conclusions of the expert physician.

The Social Chamber states that the judges did not base themselves exclusively on the report of the doctor mandated by the employer but on a set of indicators to conclude that the employee was unfit. Indeed, the judges of the court ruled after examining the conclusions of the expert physician and the occupational physician mandated by the company, but also the medical history of the employee, the nature of her tasks within the company and her age. The judge can therefore rely on several elements to make his decision.

Several contributions can be drawn from this decision rendered in the context of a legal challenge to notices of unfitness. Firstly, the labour court judge is free not to follow the conclusions of the medical inspector whose expertise he or she has requested, provided, it seems, that he or she makes a decision based on all the elements submitted for examination and that he or she draws objective conclusions. Secondly, when the industrial tribunal decides to entrust the investigation measures to a medical inspector, it is in the employer’s interest to mandate an occupational physician to write his report, which can be taken into account in the tribunal’s analysis to assess the employee’s situation.

Finally, this solution also raises the question of the appropriateness of maintaining medical unfitness litigation in the hands of industrial tribunal judges, who have no technical competence in this area.