Notice of unfitness and reclassification: pay attention to the wording of the notice

Cass. soc., September 13, 2023, no. 22-12.970

In a ruling handed down on September 13, 2023, the French Supreme Court clarified that when the occupational physician’s opinion of unfitness mentions that any continued employment would be seriously detrimental to the employee’s health, not that any continued employment would be seriously detrimental to the employee’s health, the employer is not relieved of his obligation to look for a suitable replacement.

Vigilance is therefore called for: explanations.

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1. The facts of the case

In this case, the employee, after having been placed on sick leave for non-occupational illness from January 5, 2015, was declared unfit following the opinion of the occupational physician on August 23, 2017.

The notice read as follows: “Unfit. Job study, study of working conditions and exchanges between the occupational physician and the employer carried out on August 16, 2017. Any continuation of the employee’s employment with this company would be seriously detrimental to his health”.

Consequently, the wording used by the occupational physician was not exactly that required by article L.1226-2-1 of the French Labor Code[1] in the case of non-occupational unfitness.

However, the employer took the view that the aforementioned text concerned “This does not imply that the occupational physician should mention that maintaining the employee in any job, even outside the company, would be seriously detrimental to his or her health”.

In this context, he felt he could benefit from the legally prescribed reclassification exemption.

The employee was therefore dismissed without any prior search for an alternative position having been undertaken, without having been notified of the reasons opposing reclassification, and without the opinion of the employee representatives having been sought.

The Court of Appeal had ruled that, insofar as the terms used by the occupational physician did not imply that the employee was to be removed from any work situation, they did not exempt the employer from seeking alternative employment and consulting the staff delegates (in place at the time), and that, as a result, the dismissal was devoid of real and serious cause.

The Cour de cassation followed the reasoning of the trial judges, stating that :

“The ruling states that the occupational physician’s opinion of unfitness mentions that any continuation of the employee’s employment in this company would be seriously prejudicial to his health, and not that any continuation of employment would be seriously prejudicial to his health.

The Court of Appeal correctly deduced that the employer was not exempt from searching for an alternative position and consulting the employee representatives, and that it had thus failed in its obligation to find an alternative position.”

[1] “The employer may only terminate the employment contract if he can justify either his inability to offer a job under the conditions set out in article L. 1226-2, or the employee’s refusal of the job offered under these conditions, or the express mention in the occupational physician’s opinion that keeping the employee in a job would be seriously detrimental to his health, or that the employee’s state of health is an obstacle to any redeployment in a job.”

Article L.1226-12 of the French Labor Code if the employee’s unfitness is due to professional reasons, and L.1226-20 if the unfit employee is on a fixed-term contract.

2. A reminder of the provisions of the Labor Code

Law no. 2016-1088 of August 8, 2016 modified the unfitness procedure, raising a whole series of questions. The Court of Cassation is therefore regularly called upon to rule on issues relating to the unfitness procedure, including this recent ruling.

As a reminder, the occupational physician may now indicate in the notice of physical unfitness that the employee’s state of health is an obstacle to redeployment.

In this case, the employer can claim exemption from reclassification, provided that the notice expressly includes one of the following statements:

• keeping the employee in a job would be seriously detrimental to his health;
• the employee’s state of health makes it impossible to find another job.

The High Magistrates have already provided some answers to this reclassification obligation. Indeed, they have ruled that if one of the aforementioned mentions is expressly included in the occupational physician’s notice of unfitness, the employer is exempt from seeking redeployment for the employee and offering him a job (Cass. soc. February 8, 2023 n°21-19.232); a clarification that has been widely awaited since the new procedure came into force, as has the possibility of immediately initiate the procedure for terminating the employment contract without having to consult the social and economic committee on redeployment (Cass. soc. June 8, 2022 no. 20-22.500; Cass. soc. November 16, 2022 no. 21-17.255).

With this decision, the Cour de cassation has added to its case law on the obligation to reclassify, and in particular that on the exemption from reclassification.

3. Exemption from reclassification interpreted strictly by the Cour de cassation

For the Cour de cassation, the exclusion of a job within the company is not synonymous with an exemption from implementation of the obligation at the level of an entity in the outplacement group. This was also the employee’s argument.

In fact, the latter had already ruled on the question in a case where the company belonged to a group (Cass. soc. February 8, 2023, no. 21-11.356). The question is whether this solution would be the same if the company did not belong to a group.

The very general terms used by the Cour de cassation in the September 13, 2023 ruling lead us to consider that the employer should nevertheless undertake a search for an alternative position in such circumstances.

To put it plainly, the High Magistrates have issued a reminder that the obligation to find an alternative employment solution is a matter of public policy, and that it is therefore only possible to derogate from it in cases strictly defined by the legislator.

The law, nothing but the law.

In practice, the form to be completed by the occupational physician in the event of physical unfitness[1] must include, within an insert relating to conclusions and indications concerning reclassification, two checkboxes containing the information referred to above[2].

Consequently, in our opinion, the employer cannot consider himself exempt from reclassification if one of these two boxes is not ticked.

The latter must therefore remain particularly cautious when analyzing unfitness notices, and should not hesitate to consult the occupational physician. in order to question it if there is the slightest doubt about its opinion, particularly if the latter has not used the form or has not reproduced its exact terms.

Finally, in the event of an exemption from redeployment under the above conditions, we feel that the employee should continue to be informed in writing of the impossibility of redeployment.

As a reminder, when it is impossible for the employer to offer the employee another job, he must inform him in writing of the reasons why he cannot be redeployed (C. trav. art. L 1226-2-1, para. 1 in the case of occupational unfitness and C. trav. art. L 1226-12, al. 1 in the case of occupational unfitness).

This obligation, which in our view should no longer make sense in the event of the occupational physician dispensing with reclassification, should nevertheless continue to be applied, as a matter of prudence, in the absence of a ruling by the Cour de cassation, in order to avoid any difficulties in the event of litigation (even though we fail to see how the Cour de cassation could impose this constraint, as we argued in relation to the opinion of the CSE, which in our view was no longer necessary, as subsequently confirmed by a ruling).

Several Courts of Appeal have already had to rule on this issue[3], but a clear decision confirming the position of the trial judges would be most welcome.

[1] Model distributed by order MTRT1716161A of October 16, 2017.

[2] “Keeping the employee in a job would be seriously detrimental to his or her health” and “The employee’s state of health makes it impossible to reclassify him or her in a job”.

[3] CA Dijon, June 30, 2022, 20/00413; CA, Aix-en-Provence, November 26, 2021, 21/02302; CA Nancy, June 30, 2022, 21/00186