Dismissal for medical unfitness: new clarifications from the French Cour de Cassation
End of 2021, the French Supreme Court (Cour de Cassation) provided some new clarifications concerning dismissal for medical unfitness and, in particular, on its indemnification regime.
Pursuant to Articles L. 1226-2-1 and L. 1226-12 of the Labor Code, the dismissal of an employee who is declared unfit for work by the occupational doctor can only take place provided that the employer can justify :
- either, that it is impossible to reposition the employee to another job within the group;
- or, that the employee has refused the proposed repositioning offer;
- or, that there is an express and clear mention in the medical unfitness to work declaration from the occupational doctor stating that keeping the employee in a job would be seriously detrimental to his/her health or that the employee's health condition is an obstacle to any repositioning within the group.
Therefore, when an employee has been declared unfit by the occupational doctor and the employer is unable to offer the said employee another job, the employer must inform the employee in writing of the reasons of his/her non-repositioning (Articles L. 1226-12 and L. 1226-2-1 of the Labour Code).
Failure to comply with this obligation to notify in writing of the reasons for the impossibility of repositioning, the Cour de Cassation considers that the employer would be exposed to the payment of aa specific indemnity to compensate for the damage suffered. This is a consistent case law, issued in the context of unfitness for work for a professional illness and/or work accident, which has been transposed, since 2017, to unfitness for work from a non-occupational origin (Cass. soc., 21 November 1995, n° 92-45.304; Cass. soc., 6 May 1998, n° 95-40.579; Cass. soc., 24 January 2001, n° 99-40.263).
This specific sanction applies even if the repositioning has been implemented in practice but without any prior written notification made by the employer to the concerned employee. (Cass. soc., 25 November 2020, n° 19-16.424).
In a decision of 15 December 2021, the Cour de Cassation clarified that the indemnification for the prejudice suffered due to the absence of written notification of the reasons of the repositioning impossibility cannot be cumulated with the damages for unfair dismissal. In other words, for the Cour de Cassation, the absence of written notification in case of repositioning impossibility of an unfit employee is a prejudice included in the indemnification scale for unfair dismissal called “Macron scale” (Cass. soc. 15 December 2021, n° 20-18.782).
When the unfitness is of professional origin, the damages applicable for an unfair dismissal are those provided for in Article L. 1226-15 of the Labour Code, which refers to the indemnity applicable in case of the nullity of a dismissal set forth in Article L. 1235-3-1, i.e. indemnity of at least equaling to 6 months' salary. In the event of dismissal for non-occupational unfitness, the damages for unfair dismissal is determined by the judges who will take into consideration a “Macron” scale set out in Article L. 1235-3 of the Labour Code. In such case, the amount of damages to be granted by the judges are set between a minimum and a maximum amount, expressed in months of gross salary, determined according to the size of the company and the employee's length of service.
In another case judged on 15 September 2021 (Cass. soc. 15 September 2021, n° 19-24.498), the Cour de Cassation specifies that an employee who has been declared unfit for work due to a work accident or an occupational disease is entitled to a special dismissal indemnity, even if the dismissal for medical unfitness occurs after a Court filing initiated by the same employee for judicial termination at the exclusive tort of his/her employer.
More specifically, in this case, on 14 March 2014, an employee had filed a litigation case before the Labor Court claiming for the judicial termination of his/her employment contract at the exclusive tort of his/her employer. On 18 July 2016, he was then declared unfit (due to a work accident), then dismissed for medical unfitness and repositioning impossibility on 24 October 2016. On 18 September 2019, the Paris Court of Appeal ordered the judicial termination of the employment contract and condemned the employer to pay various sums in respect of the subsequent nullity of the dismissal, in particular the special dismissal indemnity that is due in the event of unfitness for work.
This decision may come as a surprise, as the Court filing for the judicial termination had been made long before the work accident that gave rise to the notice of medical unfitness. All the more so, it is established case law that when an employee has filed for a judicial termination of his/her employment contract and then, his/her employer subsequently dismisses him/her (in the course of the judicial proceedings on the judicial termination claim), the judge must first investigate whether the merit of the judicial termination of the employment contract to determine whether it is justified or not, the dismissal having no other effect than to set the date of the termination resulting from the judicial termination (Cass. soc., 15 May 2007, n° 04-43.663).
However, when the Cour de Cassation indicates that the judicial termination has the same consequences than a unfair dismissal or a dismissal that is null and void, it means that it carries the usual financial consequences of an unfair dismissal or a dismissal that is null and void, including the entitlement for the specific indemnification scheme. In other words, the Cour de Cassation goes somehow a step further than the position it had previously adopted in a previous decision dated 20 February 2019. (Cass. soc., 20 February 2019, n° 17-17.744).
Based on this principle, one might consider that the Cour de Cassation would also have applied the same reasoning to the second case judged on 15 September 2021. This second case tackled the situation of an employee who was declared unfit for work (due to a work accident) and was dismissed for economic reasons at the same time. Even though he met all the conditions that entitled him to the payment of a special dismissal indemnity that is payable for employees declared unfit to work, he was not granted by such special dismissal indemnity. The Cour de Cassation ruled that the economic reason took precedence over medical unfitness due to the total and definitive cessation of the company's activity implemented in the context of an amicable liquidation. (Cass. soc. 15 September 2021, n° 19-25.613)
So, it is true that he was dismissed for economic reasons and the economic reason appeared to be well-founded. But, as the lower Courts had noted, he also fell within the scope of the public policy provisions of Articles L. 1226-10 et seq. of the Labour Code and yet, he did not benefitted from the specific dismissal indemnity.