Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
Since 2017, opinions of the occupational physician can only be challenged before the Industrial Tribunal. The contact for the Parties has changed, but is the procedure still similar? How much room for manoeuvre do they have? The Court of Cassation is gradually answering these questions.
Column published in actuEL RH can be read by clicking on the link below: https://www.actuel-rh.fr/content/contester-un-avis-du-medecin-du-travail-un-sujet-plus-complexe-quil-ny-parait or can be read below.
Opinions of the occupational physician are regularly challenged and/or questioned.
Previously subject to monitoring by the labour inspector (and the labour inspector doctor), since 1st January 2017 these opinions have been subject to a new dispute procedure which is now carried out before the Industrial Tribunal, pursuant to Article L.4624-7 of the French Labour Code.
The Court of Cassation is gradually clarifying the role of the Industrial Tribunal when a challenge to an opinion issued by the occupational physician is brought before it.
An opinion and a judgment were recently issued by the High Court to give us some answers on this subject.
As a reminder, pursuant to Article R.4624-42 of the French Labour Code, the occupational physician can only find an employee unfit for his/her position if he/she has carried out a study of the position, working conditions, and if he/she has talked to the employer and the employee.
Having a case brought before it in which it had to rule on the unfitness for work of an employee, the Industrial Tribunal of Cayenne had asked the Court of Cassation two questions:
In an opinion of 17 March 2021[1], the Court of Cassation replied in the negative to these two questions.
With regard to the first question asked, the Court of Cassation states that the Industrial Tribunal can only exercise control over the evidence that has been presented to the occupational physician to declare the employee fit, fit with reservations or unfit.
However, the Industrial Tribunal cannot verify whether the procedure laid down in Article R.4624-42 of the French Labour Code has been respected by the occupational physician.
In this way, the Court of Cassation agrees with the position of the administration with regard to the previous rules of procedure (specified in its Q/R of 26 October 2010) which already considered that procedural defects did not fall within the scope of the dispute of the opinion of the occupational physician.
The Court of Cassation, by this opinion, therefore does not allow an employer to challenge the opinion given because of the mere non-compliance with the unfitness for work procedure by the occupational physician.
However, it may be considered that the due diligence required of the occupational physician is essential to enable him/her to give an objective and exhaustive opinion.
This positioning may thus appear surprising, or even questionable, in practice.
With regard to the second question asked by the Cayenne Industrial Tribunal, the Court of Cassation states that the Industrial Tribunal cannot declare the contested opinion of the occupational physician null or unenforceable.
It may simply substitute its opinion for that of the occupational physician.
A recent example illustrates this substitution.
In a case submitted to the assessment of the courts[2], an employee had been declared unfit by the occupational physician via an opinion of unfitness for work worded as follows: "confirmation of unfitness for position as cashier. Contraindication to any night work after 10 p.m.; possibility of any other position respecting this contraindication; ability to benefit from training."
At risk of dismissal, the employee had challenged the opinion of the occupational physician, considering that such an opinion could not be regarded as an opinion of unfitness since it mentioned the possibilities of adapting her position.
The Court of Appeal before which the dispute was brought had ruled in her favour and had substituted an opinion of fitness with reservations for this opinion of unfitness on the grounds that, according to Article L.4624-46 of the French Labour Code, an occupational physician can declare an employee unfit only if it finds that no individual measure of rearrangement, adaptation or conversion of the position is possible.
This decision was upheld by the Court of Cassation on 24 March 2021.
While the solution adopted is not surprising as such, since it is the exact application of the provisions of the French Labour Code, it questions the risks posed for the employer by a poor classification of the situation by the occupational physician.
Indeed, it should be recalled that the opinion of unfitness for work makes it possible to initiate the dismissal procedure (if, as is the case in the majority of cases, it has not been possible to redeploy the employee to a compatible position).
In the event of a challenge to the opinion, an employer who puts in place the dismissal procedure very quickly therefore takes the risk of having dismissed an employee for whom the opinion of unfitness for work would ultimately be reclassified as an opinion of fitness with reservations. There is therefore a risk of reclassification as dismissal without real and serious cause, or even as null and void dismissal.
Since the doubt about the definitive qualification of the opinion is removed at the end of a period of 15 days following the opinion of the occupational physician (legal time limit for dispute), it is strongly advised to wait until the expiry of this time limit before initiating any dismissal procedure.
[1] Cass. Avis. 17 mars 2021, n°15002
[2] Cass. Soc. 24 mars 2021, n°19-16558