The scandal of qualified fitness opinions

When an employee is declared fit to return to work by the occupational physician, it is not uncommon for this opinion to be accompanied by the physician's "reservations", which the employer must take into account when reintegrating the employee concerned. Taking these recommendations into account may lead to a change in the employment contract, if they are incompatible with the nature of the position held. And this is where things get tricky, as demonstrated by the decision handed down by the Cour de cassation on May 24, 2023 (Cass. Soc. May 24, 2023, no. 21-23.941). In this case, the employee, a senior manager, was Marketing Director. Following two medical examinations, he was declared fit for his job by the occupational physician, but only on a part-time basis (2 or 3 days a week) and with a limited scope of responsibilities. Clearly unable to live with these reservations in view of the employee's level of responsibility, the employer created a part-time position of Marketing Project Manager, with the approval of the occupational physician. However, when the employee refused the position, which had been created especially for him, notably because it involved (quite logically) a reduction of half of his remuneration, the employer - probably rightly considering that he had made all the efforts that could reasonably be expected of him - imposed a change to his employment contract, arguing that he had a safety obligation to take into account the recommendations of the occupational physician. At the same time, he had asked the doctor to re-examine the employee's situation, following which the doctor, after a study of the position, finally reviewed his position and declared him unfit for his position as Marketing Director and fit for a part-time position as Project Manager. Which was still, and always, outside the terms of the contract. The employee was finally dismissed for unfitness and inability to redeploy, after having, in the meantime, applied for judicial termination of his employment contract, arguing that the change in his employment contract, which had been imposed on him, constituted a sufficiently serious breach on the part of his employer to justify a decision to terminate the contract to the latter's exclusive detriment. The Cour de cassation - strictly applying its jurisprudence to the effect that a reduction in remuneration constitutes a modification of the employment contract and must therefore be approved by the employee - validated the reasoning of the Cour d'appel and rejected the employer's appeal, without taking into consideration the impasse in which the employer had been placed, in addition to his manifest good faith. And so, considering that the modification of the employment contract justified its judicial termination, and noting that, insofar as the employer's decision was expressly based on taking into account the employee's state of health, it was discriminatory, it was decided that the said termination produced the effects of a null dismissal, thus entitling the employee to compensation at least equal to 6 months' salary as provided for in article L.1235-3-2 of the French Labor Code. The Social Chamber had already ruled in the past that :

• "The fact that the recommended accommodation measures entail a change in the employee's employment contract does not in itself imply the formulation of a notice of unfitness"[1] ;
• a change to the employment contract, even following recommendations issued by the occupational physician, must be expressly agreed to by the employee; however, the court ruled that the employee's decision to terminate the contract had the effect of an unfair dismissal and not a null dismissal[2].

In its ruling of May 24, 2023, the French Supreme Court further strengthened, to the extreme, the practice of issuing opinions of fitness with reservations, and hence the powers of the occupational physician and the constraints imposed on the employer. Whereas article L.4624-3 of the French Labor Code gives the occupational physician the power to modify the employee's workstation, the aforementioned Court gives him the power to modify the employment contract, thus rendering the notion of unfitness meaningless. Yet the decree of October 16, 2017, issued in application of the reform put in place by the so-called "Labor" law, had the stated aim of "prohibiting,[re] in particular aptitudes with reservations"[3], by setting the content of the 4 model medical attestations. Nevertheless, backed up by case law, some occupational physicians - for reasons that often escape the employer - openly display, through their opinions, their desire to keep employees in their posts whatever the cost (to the employer), by formulating ubiquitous recommendations, in defiance of companies' operational constraints and the very essence of the posts occupied by employees. This is sometimes done without first carrying out a study of the employee's position, or taking the trouble to discuss the matter with the employer... and in defiance of the employee's obvious unfitness for his or her position, which should lead to an opinion to this effect. However, it is clear that an opinion of fitness with reservations can, in practice, make it materially impossible to continue the normal employment contract:

• A handler who can no longer carry heavy loads;
• An assistant for whom sitting is limited to 2 hours a day;
• A bus driver who can no longer be assigned to driving ;
• A night watchman who can no longer work night shifts ;

And the way is, at present, very narrow for the employer:

• The employee may choose to take legal action before the industrial tribunal, in accordance with article L.4624-7 of the French Labor Code, in order to obtain either a continuation of the opinion of fitness, but with a modification of the occupational physician's recommendations, or the transformation of the opinion of fitness into an opinion of unfitness.

However, some industrial tribunal members are unaware of the powers legally conferred on them by the aforementioned article, and others point out the unavailability of medical inspectors to help them in their task, which then leads to orders saying "there is no need for summary proceedings", or to expert appraisals being postponed indefinitely... This brings us back to the question we feel should be taken into consideration: doesn't the impossibility of getting an employee to work in the position contractually provided for clearly characterize, at the very least, an unfitness that should be declared, and in any case an emergency situation in view of the impasse in which it places the employer? It should also be noted that when the occupational physician issues a series of fitness opinions with reservations, each limited to 2 or 3 months (yes, he can!), the contested fitness opinion generally comes to an end before the industrial tribunal has had a chance to issue its order, so that the action brought by the employer loses its purpose, leaving the latter to bring the matter before the industrial tribunal again to contest the identical opinion that follows...

• Alternatively, the employer may choose to take an "amicable" approach and ask the occupational physician to explain the practical difficulties involved in implementing his advice, as the employer did in the case under review.

Nonetheless, the occupational physician must be willing to engage in dialogue and review his or her copy, which some refuse to do. In the end, when all else fails, the employer will have no choice but to place the employee on paid leave, pending a new visit or the employee's acceptance of another job offer that may be made to him or her depending on the positions that become available/created (it being understood that such acceptance will be easier to obtain if the salary is maintained, even if the new position is of lower qualification and/or involves reduced working hours, which is not economically satisfactory for the employer...). It is therefore essential that the practice of issuing opinions of fitness with reservations should disappear, under the impetus firstly of occupational physicians, and then of industrial tribunal members, who would make full use of their powers in this area. Failing that, urgent legislation is needed to put an end to such situations. Employers must stop being caught between their safety obligations and the contractual provisions binding them to their employees. [1] Cass. Soc. March 24, 2021, no. 19-16.558 [2] Cass. Soc. May 29, 2013, no. 12-14.754 [3] "Conditions de travail - Bilan 2018" - Conseil d'orientation et des conditions de travail (DGT)