OD FLASH | No automatic prejudice in case of failure to inform about the impossibility of redeployment

Supreme Court, January 29, 2025, No. 23-17.647

In the event of incapacity, whether professional (Lab. Code, art. L. 1226-12, para. 1) or non-professional (Lab. Code, art. L. 1226-2-1, para. 1), when redeployment of the employee to another position is impossible, the employer must inform the employee in writing, specifying the reasons preventing redeployment. If the employer fails to meet this obligation, this does not affect the validity of the dismissal, but in principle, may give rise to compensation (Supreme Court, June 21, 2023, No. 22-10.017).

When an employer’s failure is established and causes harm to the employee, the latter may be entitled to compensation for the harm suffered. However, this compensation cannot be combined with that granted for dismissal without real and serious cause (Supreme Court, November 18, 2003, No. 01-43.710; Supreme Court, May 28, 2014, No. 13-11.868).

In this case, an employee was declared unfit by the occupational doctor on October 5, 2017, and dismissed for professional incapacity and impossibility of redeployment on November 13, 2017. The employee challenged the dismissal before the labor court. The employee argued, based on the provisions of article L. 1226-12 of the French Labor Code, that the employer failed to inform him about the impossibility of redeployment. He claimed compensation, arguing that the mere recognition of this failure entitled him to reparations, without needing to prove any harm.

The Bordeaux Court of Appeal, in a ruling dated March 22, 2023 (No. 19/05959), dismissed the employee’s claim on the grounds that he had not reported or justified any harm.

The employee then filed an appeal to the Supreme Court.

The Supreme Court reiterated that the employer’s failure to meet this obligation does not automatically result in harm to the employee. The mere acknowledgment of a breach of this obligation does not entitle the employee to compensation. The employee must demonstrate that harm has been suffered. The Court also emphasized that the existence of harm due to the employer’s failure to comply with this obligation is within the sovereign discretion of the trial judges.

This decision follows the jurisprudence of the Supreme Court, which, since 2016 and the abandonment of the general principle of necessary harm, has maintained that the recognition and evaluation of harm, unless exceptional, fall under the sovereign discretion of the trial judges.