The facts: a reclassification proposal in line with the occupational physician’s recommendations, but involving a change of contract.
An employee has been on continuous sick leave since March 15, 2016. During the return visit on January 4, 2019, the occupational physician declared the employee unfit for her job and for any full-time position, and recommended the possibility of a part-time position without prolonged standing or manual handling of loads.
After consultation with the Works Council, the employer made a proposal for a new position, in line with the occupational physician’s recommendations, but involving a reduction in pay. The employee refused. She was dismissed for unfitness on May 14, 2019. She appeals to the industrial tribunal to contest her dismissal.
The Court of Appeal’s position: the employee’s refusal was legitimate and the dismissal lacked real and serious cause
The Court of Appeal had ruled that the dismissal was without real and serious cause, on the grounds that the proposed redeployment position entailed a substantial reduction in the employee’s remuneration, and that the employee’s refusal was therefore legitimate.
In so doing, the Court of Appeal applied case law handed down before the Labor Code was amended in 2016. According to this case law, an employee’s refusal of a position offered by the employer under its redeployment obligation did not in itself imply the employer’s compliance with this obligation. It was then up to the employer to draw the necessary conclusions from the employee’s refusal, either by making new redeployment proposals, or by dismissing the employee on the grounds of the impossibility of redeployment (which remained to be proven in litigation).
The French Supreme Court decision: cassation given the wording of article L. 1226-2-1 in force since January 1, 2017.
The Social Division censured the appeal ruling, citing articles L. 1226-2 and L. 1226-2-1 of the Labor Code:
“In so ruling, when it was clear from its findings that the employer had offered the employee a position in line with the occupational physician’s recommendations and that she had refused it, the appeal court violated the aforementioned texts.”
This is the first time that the Court has ruled on the scope of Article L.1226-2-1 of the Labor Code resulting from the 2016 law, when the employer has offered a job under the conditions provided for in Article L. 1226-2.
The Cour de cassation’s solution is in line with the law in force since the law of August 8, 2016, which introduced a presumption of compliance with the obligation to reclassify “when the employer has offered a job, under the conditions provided for in Article L. 1226-2, taking into account the opinion and indications of the occupational physician. “.
The legitimacy of the employee’s refusal is no longer taken into consideration in determining whether or not the employer has fulfilled its obligation to redeploy.
The ruling does not answer the question of whether the employer may, prior to dismissal, be satisfied with a single outplacement offer that complies with the recommendations, when several would be possible.
The question is still debated in the legal literature: in letter, paragraph 2 of article L 1226-2-1 seems to allow this (cf. “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 if the employee refuses the job offered under these conditions, or if the occupational physician’s opinion expressly states that any continuation of the employee’s employment would be seriously prejudicial to his or her health, or that the employee’s state of health is an obstacle to any redeployment).
The question arises from paragraph 1 of this article, which states: “When it is impossible for the employer to offer the employee another job, the employer shall inform the employee in writing of the reasons preventing the employee from being reclassified”.
In any event, the search for and offer of redeployment must remain serious and fair: if this is not the case, the presumption will not apply.