OD FLASH | Incapacity for work partly due to an accident or an occupational disease: a reminder of the rules applied by the Cour de cassation (French Supreme Court)

Cass. soc. of 7 May 2024, no. 22-10.905, B

In a judgment handed down on 7 May, the Court of Cassation reiterated that the incapacity for work procedure must be applied if the incapacity for work, regardless of when it is established or invoked, is at least partly due to an accident or illness and the employer was aware of this at the time of dismissal.

In this case, an employee employed as a lorry driver suffered an accident at work on 18 April 2012. He was subsequently absent from work for non-occupational reasons and never sought medical treatment for an accident at work. As the employee never returned to work, he was declared unfit for work by the occupational physician on 30 March 2015. The notice of unfitness stated that the unfitness was due to a non-occupational illness or accident. He was dismissed for non-occupational disability. 

On appeal, it was held that the employer should have followed the procedure for dismissal for occupational incapacity, since the employee’s incapacity was at least partly occupational, and the employer was aware of this at the time of dismissal. The employer was therefore ordered to pay the employee various sums by way of compensation for the period of notice and the related paid leave, additional severance pay and compensation for the failure to provide reasons for the impossibility of redeployment prior to the dismissal procedure.

The employer then appealed to the French Supreme Court on the following grounds

– With regard to the occupational nature of the incapacity, it pointed out that the employee had taken non-occupational sick leave after the accident at work, without claiming cover under the legislation on accidents at work and occupational diseases. Consequently, in his opinion, the Court of Appeal deprived itself of a legal basis for its decision by considering that the incapacity was, at least in part, of occupational origin, without demonstrating that it was known at the time of the dismissal;

– With regard to the consequences of incapacity for work: the employer complained that the judgment ordered it to pay the employee a sum for paid leave in the form of compensation corresponding to compensation in lieu of notice. It pointed out that the compensation provided for in Article L. 1226-14 of the Labour Code was not of the same nature as compensation in lieu of notice and therefore did not give rise to a right to paid leave;

– With regard to the obligation to inform in writing an employee who is unfit for work following an accident at work of the reasons why he or she cannot be reclassified: the employer complained that the Court of Appeal had ruled against it for failing to state the reasons why reclassification was not possible before the dismissal procedure. According to the employer, the absence of a written communication of the reasons preventing the redeployment of an employee who has suffered an accident at work does not expose the employer to the sanctions provided for in Article L. 1226-15 of the French Labour Code, but it does make the employer liable to pay compensation for the damage suffered.

The Court of Cassation partially upheld the appeal:

– It recalled that the protective provisions relating to accidents at work and occupational diseases apply when the employee’s incapacity, regardless of when it is established or invoked, is at least partly due to an accident at work or an occupational disease, and the employer was aware of this at the time of dismissal. In this case, since the first interruption of work was of an occupational nature, the employer was aware of the occupational nature of the incapacity, regardless of the fact that the employee had not reported any interruption of work of an occupational nature prior to the incapacity;

– It further held that compensation equal to that paid in lieu of notice is not in the nature of notice pay and does not entitle the employee to paid leave, and therefore overturned the appeal judgment on this point;

– Finally, with regard to the employer’s failure to comply with the obligation to inform the employee in writing of the reasons for refusing the transfer, this failure does not expose the employer to the sanctions provided for in Article L. 1226-15 of the Labour Code, but does make it liable to pay compensation for the damage suffered.