OD FLASH | The employer may dismiss the employee for unfitness without having to wait for the outcome of the legal proceedings.

Cass. soc., 19 mars 2025, n°23-19.813, FS-B

Since the entry into force of the new unfitness procedure, which transferred jurisdiction from the labor inspector to the labor courts, the Court of Cassation had not yet ruled on whether an appeal had a suspensive effect and whether the employer could initiate dismissal proceedings in the meantime.

In this case, an employee recognized as a disabled worker had been employed since December 1, 2017, by the company as a data maintenance technician.

Before his hiring, the occupational physician had declared him fit for work, subject to job adjustments. However, during a medical examination on August 21, 2018, the same physician declared him unfit for any redeployment (C. trav., art. L. 1226-2-1). The employee challenged this decision before the labor court.

Without waiting for the outcome of the appeal, his employer terminated his contract on September 19, 2018, citing unfitness and the impossibility of redeployment. On May 27, 2019, the labor court finally issued an order partially annulling the notice of unfitness, ruling that the employee was still fit for a suitable administrative or technical position. The employee appealed to the labor court, arguing that he had been discriminated against due to his disability and seeking to have the dismissal declared null and void.

The court of appeal, to which the case was referred, granted all his requests and considered, in particular, that the dismissal was discriminatory on the grounds that the employer had failed to demonstrate having taken “all possible measures to retain” the employee in his job despite his disability.

This reasoning was censured by the Court of Cassation.

By combining articles L. 1133-3, L. 1226-2 and L. 1226-2-1 of the French Labor Code, the Court ruled that the dismissal was not discriminatory. It held that contesting a medical opinion of unfitness does not suspend the dismissal procedure initiated on the basis of that opinion and does not prevent the employer from proceeding with dismissal.

On this last point, the ruling is not new: the social chamber had already held in several earlier decisions, under the previous legal framework, that an appeal lodged with the labor inspector did not suspend the period for contestation. Therefore, a dismissal based on a notice of unfitness that was later annulled on appeal was not null and void, but merely lacked legal foundation, and as such, was deemed to have no real and serious cause (Cass. soc., Feb. 19, 1992, no. 88-40.670; Cass. soc., Apr. 8, 2004, no. 01-45.693; Cass. soc., Feb. 9, 2005, no. 03-44.486; Cass. soc., Mar. 31, 2016, no. 14-28.249).