Obligation to redeploy in the event of unfitness

WELCOME CLARIFICATIONS FROM THE COURT OF CASSATION In two rulings handed down in March this year, the Labour Division of the French Supreme Court (Cour de cassation) clarified the practical implications of the employer's obligation to redeploy an employee who has been declared unfit for work by the occupational physician. By way of introduction and for the record :

• Under article L.1226-2 of the French Labour Code, when an employee is declared unfit for his or her job, it is the employer's responsibility to look for a suitable alternative within the company or one of the entities in the group to which it belongs, in France where applicable.

The same article specifies that :

• The job offer(s) must take account of the occupational physician's written conclusions and the indications he provides on the employee's ability to perform one of the existing tasks in the company (or group, where applicable);
• The job offered must be as comparable as possible to the job previously held, if necessary by implementing measures such as transfers, adjustments, adaptations or transformations of existing positions or reorganisation of working hours.

 

• Article L.1226-2-1 of the same Code adds that the employer may only terminate the employment contract if he can prove that he is unable to offer a job under the conditions set out in the aforementioned Article L.1226-2 or that the employee refuses the job offered under the same conditions. Ultimately, this is a presumption of compliance with the obligation to redeploy, provided that the employer offers a position that complies with the occupational physician's recommendations. It is up to the employee to rebut this presumption by demonstrating that the position offered is "unsuitable", or that the employer was not serious/disloyal in seeking to redeploy the employee.

 

1. THE REFUSAL BY AN EMPLOYEE WHO IS UNFIT FOR WORK OF AN OFFER OF A REDEPLOYMENT POSITION, IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE OCCUPATIONAL PHYSICIAN AND INVOLVING A REDUCTION IN REMUNERATION, JUSTIFIES HIS DISMISSAL (CASS. SOC. 13 MARCH 2024, NO. 22-18.758 - PUBLISHED IN THE BULLETIN)

In this case, an employee working as a sales assistant was placed on discontinuous sick leave from 15 March 2016, and was then declared unfit for her job by the occupational physician in the following terms: "Unfit for her job and for any full-time position. Possibility of reclassification to a part-time position without prolonged standing or manual handling of loads". The following February, the employer - with the agreement in principle of the occupational physician and after consulting the staff representatives (at the time) - offered this employee a part-time cashier's position, as recommended by the occupational physician, but she refused because of the lower pay associated with this reclassification. The employer was then forced to terminate the employment contract on the grounds that the employee was unfit for work and that it was impossible to reclassify her (because she refused the proposed position), which the employee disputed before the industrial tribunal. Contrary to the decision of the Labour Court, the Court of Appeal ruled that the dismissal lacked real and serious grounds, on the grounds that no attempt had been made to find additional outplacement positions following the employee's refusal. The appeal judges had thus considered that the offer of a part-time position (in this case 17.30 hours per week), while maintaining the hourly rate initially applied to the full-time position previously held by the employee, implied a substantial reduction in her remuneration and, consequently, a change in her employment contract, which she was therefore entitled to refuse. The employer appealed to the Labour Division of the Cour de cassation, which quashed and set aside this appeal ruling, holding that the employer had offered the employee a position in line with the recommendations of the occupational physician, as provided for by the aforementioned articles L.1226-2 and L.1226-2-1, which the employee had chosen to refuse. Accordingly, by requiring the employer to make other proposals for redeployment, even though it had already offered a position in line with the occupational physician's recommendations, the Court of Appeal had breached the law by imposing an additional obligation on the employer that was not provided for by law. This decision is to be welcomed in that it authorises the immediate dismissal of an unfit employee who refuses a redeployment position in accordance with the opinion issued by the occupational physician, even if, as was the case in this instance, the redeployment involves a significant reduction in pay due to a change in working hours, which is not sufficient to rebut the presumption that the obligation to redeploy has been fulfilled, as mentioned above. To give precedence, in such circumstances, to the case law rules applicable to changes to employment contracts, as the Court of Appeal censured had done, would be tantamount to rendering the said presumption null and void, which is precisely what the Court of Cassation opposed. But be careful:

• It is important to explore all the redeployment options referred to in the occupational physician's opinion, and not just those that would entail a change to the employment contract (and which the employer would assume would be refused by the employee);
• this judgment was handed down with regard to a change in the employment contract affecting, by ricochet, the employee's remuneration as a result of a reduction in working hours (applied to an hourly rate maintained at the same level); as it stands, it cannot be stated with certainty that the Cour de cassation would have adopted the same position had it been a question of a reduction in remuneration linked, for example, to the offer of a position with a lower qualification and an hourly rate that was also, and logically, lower than that of the position previously held (for identical working hours).

 

2. THE EMPLOYER MAY BEGIN THE SEARCH FOR A SUITABLE REPLACEMENT FOR AN EMPLOYEE DECLARED UNFIT AS SOON AS IT IS AWARE OF THE OPINION OF THE OCCUPATIONAL PHYSICIAN, WITHOUT WAITING FOR THE DETAILS REQUESTED FROM THE LATTER (CASS. SOC. 27 MARCH 2024, NO. 22-16.096 - INEDIT)

In the case giving rise to this judgment, an employee occupying the position of fire safety manager had been declared unfit for his position on 27 November 2017 by the occupational physician, who had specified that the employee could be assigned to another position involving fixed daytime working hours. On the following 4 December, the employer asked the occupational physician for details of the possibilities of redeployment and, on the same day - and therefore without waiting for his reply - began looking for a new job with the human resources department, in particular by sending a "standard" email to companies belonging to the same group on the following 12 and 15 December, in which she indicated that she was "The company is currently looking for an outplacement solution for the employee, a SSIAP 2 fire safety team leader. He has been with the company since 2 June 1999 and is 40 years old. Following a resumption medical examination on 27 November 2017, the occupational physician declared that: ''Following the first examination on 11 October 2017, the study of the position and working conditions on 15 September 2017 and the interview on 14 November 2017, the employee is permanently unfit for his position as a SSIAP officer. He could be assigned to a position with fixed daytime hours". We asked the occupational physician for details of the employee's redeployment options. I'll be sure to get back to you as soon as I have more information from him. As the search for a new job is to be extended to the whole Group, I would be grateful if you could use any means to find a suitable position for him in terms of physical fitness. ". The employee was eventually dismissed for unfitness and inability to redeploy. The lower courts ruled in favour of the employee and considered that the dismissal thus notified was without real and serious cause, due to the employer's failure to fulfil its obligation to redeploy. The employer then appealed to the French Supreme Court, complaining that the appeal court had ruled that it had In this way, the company "gave its research too vague a scope for not having waited for the recommendations requested from the occupational physician", and by not proceeding with its own research, the company was not in a position to make any recommendations. In this case, the employer is required to carry out "a fair and complete search, taking only partial account of the opinion of the occupational physician". The Social Division of the Cour de cassation censured the lower courts, ruling that, under the aforementioned Article L.1226-2, "the employer is not obliged to wait for the occupational physician's details before seeking to redeploy the employee". It is understood that if the occupational physician provides the details requested by the employer, which was not the case in this instance, it is then up to the employer to take these into account and adapt his search for a new position (and therefore to communicate these details to the group entities initially requested).