OD FLASH | A work stoppage following the declaration of unfitness does not prevent the application of the unfitness regime

Supreme Court, January 29, 2025, No. 23-18.585

According to Articles L. 1226-4 (non-professional origin unfitness) and L. 1226-11 (professional origin unfitness) of the French Labor Code, when, after a one-month period following the date of the medical examination for work resumption, the employee declared unfit is not reassigned within the company or is not dismissed, the employer shall pay them, as of the expiration of this period, the salary corresponding to the position they held before the suspension of their employment contract.

In this case, an employee was repeatedly placed on sick leave starting from April 27, 2016, and then, lastly, from April 4 to 12, 2017. They received wage maintenance, in accordance with the provisions of the collective agreement for engineers and managers in the metallurgy sector. Following an unfitness notice issued by the occupational doctor on April 13, 2017, stating that the employee’s health condition prevented any reassignment to another position, the employee was dismissed for unfitness and inability to be reassigned on June 30, 2017.

After the unfitness notice, the employee was again placed on sick leave from April 14, 2017, and the leave was extended until May 28, 2017.

The employee brought a case before the labor court regarding the execution of their employment contract, particularly claiming back wage maintenance for the period from April 14, 2017, to May 28, 2017.

The Lyon Court of Appeal ruled, in a judgment dated May 17, 2023 (20/00776), that although the employee had obtained a new sick leave from April 14, 2017, extended until May 28, 2017, this new sick leave could not result in the opening of a new suspension period of the employment contract and prevent the application of the unfitness regime.

The employee then appealed to the Supreme Court.

The Supreme Court clarified that the trial judges correctly concluded that the employee, as of April 13, 2017, was under the unfitness regime, and thus, the suspension of the employment contract entitling wage maintenance had ended.

This decision continues the case law of the Supreme Court and confirms that a new sick leave, issued after the declaration of unfitness, cannot prevent the application of the unfitness regime (Supreme Court, March 13, 2019, No. 17-26.127).