OD FLASH | The employee’s appeal against a notice of unfitness mentioning the impossibility of redeployment is admissible.

Cass. Soc., 3 juillet 2024, n°23-14.227

Under Article L4624-7 of the Labour Code, an employee has fifteen days in which to appeal to the labour court against “the opinion, proposal, written conclusion or advice of the occupational physician based on medical information”. The occupational physician may attach to the notice of unfitness information concerning the redeployment of the worker, in particular stating that the worker’s continued employment would seriously damage his health or that his state of health prevents him from being redeployed to another job. In this decision, the Court of Cassation extends the scope of these “indications” and regulates the indication given by the occupational physician regarding the employee’s redeployment possibilities.

In this case, an employee was placed on sick leave with effect from 7 September 2021. At the resumption medical examination on 4 April 2022, she was declared unfit for work and the opinion of the occupational physician stated that her “state of health is an obstacle to any redeployment in a job”.

On 14 April 2022, the employee lodged an appeal with the Labour Court, which ruled in summary proceedings against the notice of unfitness. In a judgment of 22 February 2023 (no. 22/04809), the Lyon Court of Appeal upheld the employee’s claims and dismissed the employer’s appeal on the grounds that, since the occupational physician’s opinion was based on medical findings relating to the employee’s potential for redeployment within the company, his challenge fell within the scope of the appeal provided for by law.

The employer appealed to the Court of Cassation, arguing that the employee did not have the right to challenge the opinion of the occupational physician before the industrial tribunal in so far as it referred to an exemption from reassignment.

The Court of Cassation dismissed the appeal.

It pointed out that, in accordance with articles L4624-4 and R4624-42 of the Labour Code, the occupational physician may add to the notice of unfitness information concerning the redeployment of the employee, in particular stating that the continuation of the employee in a job would be seriously prejudicial to his health or that his state of health is an obstacle to redeployment in a job. Such a statement constitutes an opinion of the occupational health professional based on medical evidence, so that a challenge to the statement is admissible.

The Court of Cassation confirms that the challenge is not limited to the meaning of the opinion issued by the occupational physician, but that the indications given by the occupational physician regarding the employee’s redeployment possibilities are an indication based on medical findings. Care should be taken when issuing the notice of dismissal to check whether the employee has challenged the opinion of the occupational physician by ticking the box exempting the employer from seeking redeployment solutions.