1. Professional incapacity and redeployment obligation
a) Update on the labor code reform’s contributions
When an employee is declared unfit by an occupational physician, his employer must seek to redeploy him to another job appropriate to his abilities, except if exempted by the occupational physician under the conditions prescribed by law. It is only in the event of a justified redeployment impossibility that dismissal for incapacity is possible.
Ordinance No. 2017-1387 of 22 September 2017 restricted the scope of this redeployment obligation according to whether or not the company the unfit employee is assigned to belongs to a group of companies. The group is defined here as a group formed by a so-called dominant company (whose registered office is located in French territory) and the companies it controls or over which it exercises a dominant influence.
If the company where the unfit employee is assigned does not belong to such a group, the search for redeployment will not have to be extended to other companies.
If this is not the case, redeployment searches will not only include the positions of the employee's assignment company but also those of the companies in the group to which it belongs which are located in France and whose organization, activities or place of operation allow the permutation of all or part of the staff.
The previous rules are only applicable in case of an incapacity of professional origin, when the assignment company belongs to a group whose dominant company is not located on French territory: the search for redeployment must then take place within all companies that share strong ties characterized by an organization permitting the permutation of their staff, even if they do not belong to the same group.
This change of redeployment obligation scope is applicable for the unfitness to work notices emitted since 24 September 2017.
b) Our jurisprudence selection
The search for redeployment should not be conducted hastily (cass. soc., 27 Sept. 2017, n°16-17.502)
An occupational physician has declared an employee unfit for her job. The employer then asked the physician about the type of positions that could be offered to the employee. Without an answer from him within 48 hours, the employer informed the employee that is was impossible to provide any redeployment and, two days later, initiated her dismissal procedure, which the employee disputed.
Unsurprisingly, this dismissal was judged without any real and serious cause, on the grounds that the search for redeployment was neither fair nor serious, the employer having initiated the procedure of dismissal for incapacity too hastily.
The staff delegates’ opinion is of no consequence on the redeployment obligation (cass. soc. 6 Oct. 2017, n°16-14.544)
The employer must now consult the staff representatives (and in 2018 the social and economic committee) before suggesting a redeployment position to the unfit employee, whether the incapacity is of professional origin or not. However, this opinion does not affect the employer’s redeployment obligation.
In this case, the staff representatives stated in their notice "the impossibility of developing a redeployment position within the company or a job permutation compatible with the medical restrictions imposed on the employee". Considering that it was relieved of any obligation to seek to redeploy the employee, the employer then fired him directly.
Wrongfully according to the judges, as they considered the dismissal to be without real and serious cause for failure to abide by the redeployment obligation. The employer must always seek to redeploy the unfit employee, regardless of the staff representatives’ opinion. The occupational physician is the only one fit to exempt the company from its obligation, provided that he expressly states this in the unfitness notice as prescribed by the law.
2. Professional incapacity and resumption medical visit
a) Update on applicable rules
- the employer is required to organize a medical visit after:
- a sick leave or a leave because of an accident that is not of professional origin, of at least 30 days;
- the end of a maternity leave;
- a leave because of a work-related accident of at least 30 days; or
- an occupational disease (whatever the duration of the leave).
It is up to the employer to take the initiative of organizing the medical visit, which must take place on the day of the actual work resumption, and at the latest within 8 days following this resumption.
b) Our jurisprudence selection
Failure to organize a medical visit can justify the employee acknowledging the termination of his/her contract (cass., 19 Oct. 2017, n°15-26950)
In this case, an employee who was at the end of her sick leave asked her employer to organize a medical visit. The employer complied with this request. However, he never sent the employee her summons, merely displaying a notification in the locker room. The employee then proceeded to terminate her employment contract to the exclusive fault of her employer (i.e. a constructive dismissal).
Rightfully according to the Supreme Court, which sanctioned the wrongful abstention of the employer as a serious enough failure alone to justify a contract termination to the employer’s fault, this termination then producing the consequences of a dismissal without real and serious cause.
We take advantage of this opportunity to remind you that the jurisprudence is constant in considering that if the time allotted to the employer to organize a medical visit has expired or if he fails to organize a medical visit, it necessarily results in harm to the employee, entitling him/her to damages.
3. Moral harassment
a) Update on applicable rules
The employer is responsible for the employees’ safety and has the obligation to ensure it.
In terms of moral harassment, the Supreme Court no longer characterizes this obligation to ensure security as being solely result based but based on the implemented preventive measures (see our December 2015 OnPoint), therefore the employer can exonerate himself of his responsibility if he proves that he has implemented the appropriate and necessary legal measures to prevent occupational risks and hazards.
When faced with a conflict at work, such prevention measures are those that mitigate the impact or, better, stop disputes. But they must be implemented without delay in order for the employer to be exonerated.
b) Our jurisprudence selection
The employer must act without delay when an employee points out a situation that is likely to jeopardize his health or safety, at the risk of failing to his obligation of ensuring the employee’s security (cass. soc., 22 June 2017, n°16-15507)
In this case, an employee occupying a physician's position in a health association informed her employer that she was being harassed by a colleague. A few days later, she was placed on sick leave. She then sought, almost 10 months later, the acknowledgement of the termination of her employment contract. During the legal proceedings, she was finally declared unfit and dismissed for unfitness.
Informed of the situation, the employer had not remained inactive. He had indeed:
- invited the employee to take an appointment with an occupational physician;
- organized a meeting between the protagonists, in the presence of the association’s other physician employees;
- chosen a coordinator amongst the association’s employees to settle possible conflicts;
- changed the work in pairs’ organization; and
- considered with the victim employee the possibility that she could be assigned to another site.
These measures, however, were not considered sufficient and the employee’s request for the acknowledgement of the termination of her employment contract was attributed to the employer’s negligence, thus he was ordered to pay damages for dismissal without real and serious cause, as well as for the moral harm that the employee endured.
According to the judges, by observing the persistence of the conflict between the two physicians, the management should have separated them, received them alone for mediation and, without waiting for the victim’s return from sick leave, offered her a change of office or a position available in another center, the latter not falling under the redeployment obligation but under the obligation to ensure her safety.
This ruling reminds us of the importance for the employer to act swiftly – whether or not the employment contract is suspended – when an employee reports being in a situation at risk for his/her health or safety. Hence, it is necessary to review certain practices consisting in postponing the conflict’s resolution to the end of the employee’s sick leave in order not to bother him/her during this period.
4. Illustrations of complex relationships between health and private life / personal life
Accident at a nightclub during an assignment: it is a work-related accident (cass. ch. civ. 2, 12 Oct. 2017, n°16-22481)
An employee sent on an assignment to China was the victim of an accident at three o'clock in the morning while dancing in a nightclub. Informed of the situation, his employer declared a work-related accident with reservations. As the accident ended-up being taken in charge by health insurance according to the legislation on work-related accidents, the employer challenged the decision before the social security courts.
However, this was unsuccessful. Indeed, for the Supreme Court, when an employee on assignment is the victim of an accident occurring during a professional act or an act of everyday life, this accident is presumed to be a work-related accident. This presumption can only be reversed if the employer or the health insurance organism demonstrates that the employee had interrupted his/her assignment for personal reasons. That was not the case here, according to the judges, the time - three o'clock in the morning - and the venue - a nightclub - were not enough on their own to demonstrate that the employee had interrupted his professional activity, as it could perfectly well be part of his assignment to go to such a place in order to « accompany clients or collaborators, or accept an invitation in the scope of his assignment ».
Working while sick can justify a dismissal for misconduct (cass. soc., 12 Oct. 2017, n°16-18.836 F-D)
An employee continued to work while knowing that he was not in the condition to do so because of his health condition. His decision was not inconsequential: the said person, a forklift driver, dropped two pallets while driving a forklift, his medical treatment having induced a state of drowsiness. In order to justify himself, he explained to his employer that he did not wish to be placed on sick leave to avoid the loss of salary related to the waiting period. However, his employer dismissed him for misconduct, accusing him of a breach of the legal obligation to look after his health and safety, as well as those who might be affected by his acts or omissions at work.
The complainant contested the termination of his employment contract, but was denied his claims, the employee has endangered his colleagues by working while he was not fit to perform his duties.
It should be noted that the employee’s obligation to ensure his own safety and that of others can be applied to other circumstances, such as compliance with road safety rules for itinerant employees, or using digital tools outside of the work context (while driving, inconsiderately, etc.).
Lire en français: Sélection de jurisprudence – France / Second semestre 2017