Errors in unfitness notices: what are the consequences?

(Cass., soc., October 25, 2023 n°22-12.833 and 22-18.303) Our long series of comments on the subject of incapacity is not yet over... Since January 1^st, 2018, the employer (or employee) has been able to appeal to the Conseil de prud'hommes under the accelerated procedure on the merits in order to contest the opinions, proposals, written conclusions or indications issued by the occupational physician, whereas previously, the dispute fell within the jurisdiction of the Labor Inspector. This procedural novelty has given rise to a torrent of litigation, so much so that the Cour de cassation has on numerous occasions had to rule on the many issues surrounding these challenges, in order to refine their contours and make up for the legislator's shortcomings. In two rulings handed down on October 25, 2023, the Social Division was able to rule more specifically on the possible errors that can vitiate a notice of unfitness, whether the challenge is made via the classic channel of the accelerated procedure on the merits, or directly in a dispute concerning the validity of the dismissal pronounced on the basis of an erroneous notice. *** In the first case, an employee holding the position of A340 Preparation Activity Manager was declared unfit for work by the occupational physician on April 26, 2018, who considered that the employee's state of health prevented him from being reclassified in a job. As the company was unable to redeploy him, he was dismissed on May 29, 2018. It is important to point out that neither the employee nor the company contested the notice through the accelerated procedure on the merits. However, the individual appealed to the Labour Court on the merits, challenging the validity of the termination and arguing that it lacked real and serious cause, since the medical opinion was irregular, in that he had been found unfit for the position of Coordinator, even though - as mentioned above - he had last been in charge of the A340 preparation activity. Although the Conseil de prud'hommes dismissed the employee's claims at first instance, the Toulouse Court of Appeal ruled that he could raise such facts in the context of a conventional procedure on the merits, and thus challenge the content of his medical opinion outside the specific procedure laid down by articles L4624-7 and R 4624-45 of the French Labor Code. More specifically, she ruled that these articles, as drafted at the time of the events, stipulated that the dispute concerned medical elements, but that in this case, the employee's arguments related to non-medical elements, thus opening a loophole enabling him to emancipate himself from the accelerated procedure on the merits. Then, it held that the error concerning the position referred to in the notice of unfitness was such as to demonstrate that the study of the position had not been carried out seriously, rendering the dismissal devoid of real and serious cause. Fortunately, the French Supreme Court (Cour de cassation), hearing the case on behalf of the employer, disagreed. In its ruling of October 25, 2023, it strictly applied the provisions of Articles L 4624-7 and R 4624-45 of the French Labor Code, ruling that the notice of unfitness can only be contested via the specific procedure, and that in the absence of such an appeal, the conclusions of the healthcare professional are binding on the employer, the employee and the judges.. Thus, according to the High Court, once the 15-day period has elapsed from the finding of unfitness, the employee cannot contest the legitimacy of his dismissal on the grounds of an error in the medical opinion. But the scope of this ruling is not limited to this point alone, as the court also points out that the dispute may concern medical elements, but also a procedural point, as in this case. This is an important clarification, since under the provisions of article R 4324-42 of the French Labor Code, the occupational physician can only declare an employee unfit for work once he or she has taken 4 steps, namely :

• at least 1 medical examination;
• a job study ;
• a study of working conditions in the company (in addition to the fact that it is up to the healthcare professional to indicate the date on which the company sheet was updated);
• an exchange, by any means, with the employer.

In the event that one of these formalities has not been carried out, an employer (or an employee) can contest the notice of unfitness via the specific procedure. While the Court may have adopted an identical position in a ruling handed down on December 7, 2022 (RG n°21-23.662), a reminder is not useless, and serves to emphasize the fact that in addition to medical elements, it remains possible to present arguments relating to the diligence required of the healthcare professional prior to the finding of unfitness. Such a ruling is to be welcomed, in that it emphasizes the purpose of the specific procedure for contesting medical opinions, and takes the trouble not to give in to the potential excesses of employees who would not contest the notice of unfitness on receipt, thus appearing to have nothing to say about their unfitness... only to argue later that their dismissal would be without real and serious cause due to an error in the document issued by the health professional. In the second decision, an employee challenged, via the accelerated procedure on the merits this time, a notice of unfitness on the grounds that, once again, it contained an error as to the name of the position occupied. The Rennes Court of Appeal seems to have no intention of wasting time on this dispute. She ruled that :

• an error did indeed appear on the notice of unfitness regarding the job title;
• the occupational physician, questioned by the employee who was surprised to be declared unfit, did not provide "any details" as to the nature of the position covered by the study he was required to carry out before issuing his opinion;
• so that its conclusions are irregular and must be annulled.

However, she did not bother to appoint a Medical Inspector or an expert to examine the appellant. Nor does it issue a decision to replace the annulled opinion, leaving the parties most certainly embarrassed by this decision, which in the end adds little. Fortunately, the Cour de cassation overturned the decision, ruling that the judges had disregarded the scope of their authority, since it was up to them, in such a case, to replace the annulled notice with their own decision, after having ordered any necessary investigative measures. Such a solution may seem the most obvious, given that :

• At the time of the Rennes Court of Appeal's decision, the Cour de cassation had already recalled that in the event of an irregular medical opinion, the lower courts must substitute their own decision for the contested opinion, after ordering an investigation if necessary, so that the decision was clearly contra-legem ;
• in any case, it's hard to see the point of a court decision that simply cancels a notice of unfitness without further formality.

This ruling also serves to remind certain trial judges of their obligations in this area. While we'll never know the reasons why the Rennes Court of Appeal made such a blunder, we do believe that such a decision is symptomatic of the lack of interest shown by industrial tribunal members - and by extension by the Courts of Appeal - in this type of litigation, which they wrongly feel they are powerless to deal with. Although they have the power to issue a decision directly, without ordering further investigations, they almost systematically refuse to do so. They are also aware that an investigative measure would have the effect of slowing down case processing times, which they do not wish to see, in order to avoid being accused of inefficiency in the management of the cases for which they are responsible. Let's hope that the forthcoming ruling by the French Supreme Court (Cour de cassation) will serve as a clear reminder that a solution is within their reach, given that they remain competent to rule directly on an employee's state of health.