OD Flash | Return to work without a medical examination: the employer’s disciplinary authority remains intact

Cour de cassation, civile, Chambre sociale, 16 octobre 2024, 23-14.892

Pursuant to Article R.4624-31 of the French Labor Code, when a sick leave due to illness or a non-occupational accident lasts at least 60 days, the employee must undergo a return-to-work medical examination with the occupational physician. This examination must, in principle, take place on the day of the employee’s return or, at the latest, within eight days thereafter.

In a ruling dated October 16, 2024, the Social Division of the French Supreme Court (Cour de Cassation) ruled that the failure to arrange for this return-to-work examination does not, by itself, render a dismissal for serious misconduct unjustified, provided the employee has effectively returned to their position and the reasons cited for the dismissal are based on misconduct that occurred on the date of their return.

In this case, an employee returned to work on September 12, 2017, following a work a sick leave that began on April 6, 2017. On the same day as her return, she was placed on suspension pending investigation, and the company initiated a dismissal procedure for serious misconduct based on actions allegedly committed on that date. She was ultimately dismissed on September 26, 2017, and filed a claim with the Labor court to contest the dismissal as lacking real and serious cause. The Versailles Court of Appeal ruled in favor of the employee, reproaching the employer for failing to organize the return-to-work medical examination prior to imposing the disciplinary sanction. The employer filed an appeal with the French Supreme Court, arguing that the absence of a medical examination did not preclude the dismissal for serious misconduct as of the employee’s effective return, given the alleged acts committed on the day she resumed work.

The question presented to the French Supreme Court was thus whether an employer can, as of the employee’s effective return to work after a medical leave, proceed with a dismissal for serious misconduct despite the absence of a return-to-work medical examination, and considering that the employment contract is, in principle, still suspended pending the said examination.

The French Supreme Court answered affirmatively, holding that an employee whose employment contract is suspended due to illness and who resumes work before undergoing the required return-to-work medical examination remains subject to the employer’s disciplinary authority pending the arrangement of said return-to-work examination.