Cass. Soc., 12 February 2025, no. 23-22.612
As a reminder, in cases of unfitness for work, the employer is obliged to look for a new job for the employee concerned, unless the occupational physician expressly states that “keeping the employee in a job would be seriously prejudicial to his health” or that “the employee’s state of health makes it impossible to find a new job” . [1]
In order to avoid any misinterpretation, a model notice of unfitness including boxes to be ticked was introduced by the Order of 16 October 2017, enabling the occupational physician to select one of the two hypotheses for dispensing with reclassification.
However, some doctors draw up their own formulations.
In this case, an employee on sick leave was declared unfit for work by the occupational physician, who stated in his opinion that his state of health made it impossible to offer him redeployment within the company in the following terms:
“The employee’s state of health makes it impossible to offer him an alternative position within the subsidiary or holding company and renders him unfit for any position”.
The employee contested his dismissal, arguing that the notice of unfitness did not reproduce identically the wording set out in Article L. 1226-2-1 of the French Labour Code. He considered that this lack of explicit mention should oblige the employer to look for another job.
For the first time, the Court of Cassation has ruled that the obligation to reclassify the employee can be waived if the wording of the notice of unfitness is equivalent to that set out in the French Employment Code, and in this case validates the employer’s waiver of the obligation to reclassify the employee.
Until now, the Cour of cassation had adopted a strict and severe approach to the wording of the notice of unfitness, ruling, for example, that the wording :
were sufficient to call into question the exemption from redeployment; the doctor having reduced these findings to the site and not to the company or to the company and not to the group to which it belonged.
In practice, this decision seems to allow the occupational physician to use a formula equivalent to the legal formulas for dispensing with redeployment, provided that the notice of unfitness is sufficiently clear and explicit, particularly as regards the scope of the unfitness.
However, despite this greater flexibility in the case law, it is advisable to remain vigilant regarding the terms used by doctors in unfitness notices when they do not strictly correspond to the legal wording. In such circumstances, it is best to write back to the doctor to clarify his position.
[1] Article L. 1226-2-1 of the French Labour Code
[2] Cass. Soc., 8 February 2023, no. 21.11.356
[3] Cass. Soc., 13 September 2023, no. 22-12.970
[4] Cass. soc., 13 Dec. 2023, no. 22-19.603