OD FLASH | Incapacity : burden of proof for unfair redeployment proposals

In accordance with articles L. 1226-10 and L. 1226-12 of the Labour Code, when an employee is declared unfit for work by the occupational physician, the employer must offer the employee another job within the company or group that is as similar as possible to the job previously held, if necessary by taking measures to adapt or redeploy the job, compatible with the employee’s state of health and in accordance with the occupational physician’s recommendations.

In a decision dated 4 September 2024, the Social Division of the Cour de Cassation (French Supreme Court) stated that when an employer offers a job to an employee who is unfit for work, in accordance with the requirements of the Labour Code, the obligation to reclassify the employee is deemed to have been met. It is then up to the employee to prove that the offer was not made fairly.

In this case, an employee hired by a company in Normandy as a “heavy current fitter” was declared unfit for his job by the occupational physician. The company then offered him nine redeployment options, all geographically distant from his home. After refusing all of them, the employee was dismissed on 6 October 2017 on the grounds of unfitness and inability to find another job.

The employee challenged this dismissal before the Labour Court, arguing that the redeployment offers were insufficient and geographically inappropriate. The Rouen Court of Appeal reclassified the dismissal as a dismissal without real and serious cause, as the employer was unable to prove that it had actually looked for positions corresponding to the employee’s qualifications and the Court of Appeal considered that the obligation to redeploy had not been fulfilled in a sufficiently fair and serious manner.

The question submitted to the Court of Cassation was therefore whether the presumption in favour of the employer who has offered a job suited to the employee’s abilities obliges the employee to prove the unfairness of the reclassification proposals.

The Court of Cassation answered in the affirmative, stating that the Court of Appeal had indeed erred in reversing the burden of proof. In its ruling, the Court clarified the burden of proof in reclassification cases and standardised the criteria for proof.

– Clarification of the burden of proof in reclassification cases: The Cour de Cassation confirms that if the employer offers a job that meets the legal requirements, the obligation to redeploy is presumed to have been fulfilled. It is up to the employee to prove that the offer was not made fairly.

– Standardisation of the burden of proof: The Cour de Cassation clarifies that the employer does not have to prove that there are no vacancies in a particular region, but that it must demonstrate good faith in the reclassification process.

This ruling is important in the context of the employer’s obligations regarding redeployment and dismissal for incapacity. It clarifies that if the employer has offered a job that meets the requirements set out in the Labour Code, the obligation to redeploy is deemed to have been met. It is up to the employee to prove that the offer was not made fairly.