Statements of unfitness under the microscope after recent French Supreme Court rulings

A confusing statement of unfitness. What is the key to understanding it?

As a general rule, if an employee is declared unfit for his or her job for medical reasons, the employer is obliged look for an alternative position, unless the occupational health physician has checked one of the exemptions on the unfitness form:

But what should be done when the occupational health physician, after checking this option, has written by hand: “Unfitness is an obstacle to any redeployment on site”?

• Answer from the French Supreme Court (Court de cassation): The employer is under an obligation to redeploy the employee in the establishments outside the site where he or she worked (Cass. Soc. 13 Dec. 2023 no. 22-19.603).

• Key understanding: The occupational health physician’s handwritten note prevails over the checked box.
• Recommendation: In case of doubt, ask the occupational health physician.

One statement of unfitness may conceal another. Which one is it?

First case

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An employer initiated a dismissal procedure after receiving a statement of unfitness from the occupational health physician, which included a duly completed exemption from redeployment.

At the same time, the employee received a statement of unfitness that was completed in a different way.

What should be done when faced with 2 contradictory redeployment exemptions?

• Answer from the French Supreme Court: The employer was not obliged to try to redeploy the employee concerned and could trust the statement provided by the occupational health physician (Cass. Soc. 7 Feb. 2024 no. 22-12.967).
• Key understanding: The extent of the employer’s obligations can only be determined on the basis of the document provided to him or her.
• Recommendation: If the employee informs the company of the existence of a different statement, ask the occupational health physician.

Second case

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The employer received 2 successive statements of unfitness for the same employee:

• 1^st statement explaining that the employee was unfit for his or her position but “could do administrative work on a very short time basis, less than 1 hour/day from home” 
• 2^nd statement with an exemption from redeployment

In compliance with the 2^nd statement, the employer decided to dismiss the employee for unfitness with an exemption from redeployment. However, the employee had only ever received the first statement.

Is it lawful for the employee to contest his or her dismissal by questioning the 2^nd statement of unfitness?

• Answer from the French Supreme Court: The employee should have contested the 2^nd statement in accordance with the particular procedures stipulated in L 4624-7 of the French Labor Code and then contested his or her dismissal. Failing to do so, the 2^nd statement prevails (Cass. Soc. 4 Feb. 2024 no. 21-10.755).

The 2-week period to contest a statement of unfitness does not start until the statement, duly drafted and indicating the legal avenues and deadlines for an appeal, is delivered to the employee with a specific date. This is generally done in person with a signature on receipt.

However, a certificate from the occupational health physician affirming having met with the employee on a specific day to explain the contents of the statement and its implications is not equivalent to a formal notice (Cass. Soc. 13 Dec. 2023 no. 21-22.401).

A formal statement of unfitness with a specific date: there is no substitute for a signature on receipt when the statement is delivered by hand.

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Social law is a living law that is constantly changing. This is why Primexis, in collaboration with the law firm Dupard & Guillemin, provides you with regular support and answers your questions from the viewpoint of Payroll and Labor Law.