OD FLASH | The notice of unfitness does not have to use the exact wording of the French Labor Code in order to release the employer from his obligation to seek redeployment.

Cass. Soc., February 12, 2025, no. 23-22.612

When the occupational physician’s opinion expressly states that the employee’s state of health makes it impossible to offer reassignment within the subsidiary or holding company, and renders the employee unfit for any position, the employer is exempted from seeking reassignment, the wording being equivalent to that of article L. 1226-2-1 of the French Labor Code.

Dismissal for non-occupational unfitness can be notified (C. trav., art. L. 1226-2-1):

“if the employer can justify either their inability to offer a job under the conditions set out in article L. 1226-2, the employee’s refusal of the job offered under these conditions, or an explicit statement in the occupational physician’s opinion that retaining the employee in any position would seriously harm their health or that the employee’s health condition prevents any reassignment to a job.”

Case law in this area is very strict: the French Supreme Court requires that the occupational physician’s opinion be clear and unambiguous.

This is not the case when the occupational physician’s opinion uses the following terms:

• “Unfit. The employee’s state of health is an obstacle to any redeployment in this company“. (Cass. Soc., February 8, 2023, no. 21-11.356)

•  “Unfit. Job study, study of working conditions and exchanges between the occupational physician and the employer carried out on August 16, 2017. Any continuation of the employee’s employment in this company would be seriously detrimental to his health” (Cass. Soc., September 13, 2023, no. 22-12.970).

Although, its decision of February 12, 2025, the French Supreme Court seems to depart from its strictly literal application of article L. 1226-2-1 of the French Labor Code.

In this case, the occupational physician’s opinion read as follows: “unfit to return to the position held. The employee’s state of health makes it impossible to offer him an alternative position within the subsidiary or holding company, and renders him unfit for any position“.

The company therefore dismissed the employee on the grounds that he was unfit for work and could not be redeployed, without first looking for possible redeployment positions, which the employee contested before the Labour Court.

The appeal argued that the terms of the occupational physician’s opinion did not exempt the employer from looking for an alternative position for the employee, since the wording used by the legislator in article L. 1226-2-1 of the French Labor Code was not reproduced in extenso.

However, both the Court of Appeal and the Court of Cassation rejected this argument: the wording adopted by the occupational physician met the conditions laid down in the legislation to exclude any attempt to redeploy the employee, without requiring a literal repetition of the legislative formula.