OD FLASH | Work-related incapacity: an employer who is unable to redeploy an employee must still consult the Social and Economic Council before dismissing them.

Cass. Soc., March 5, 2025, no. 23-13.802

In the event of a work-related incapacity established by the occupational physician, consultation of the social and economic council is required before any attempt is made to reclassify the employee (French Labor Code, art. L. 1226-10). This obligation has been extended to non work-related incapacity since French Law no. 2016-1088 of August 8, 2016 (French Labor Code, art. L. 1226-2).

In the decision referred to above (no. 23-13.802), the French Labour Court ruled on the timing of this consultation, in the specific case where the employer has not identified a suitable redeployment position to offer the unfit employee.

In the case in point, the employee had suffered an accident at work and had been declared unfit for work by the occupational physician. The employer dismissed him on the grounds of unfitness and the impossibility of redeployment. As part of the dismissal procedure, the employer consulted the Social and Economic Council on the day the letter of dismissal was sent, i.e. after the employee had been summoned to a preliminary interview.

The employee appealed to the Labor Court, arguing that the employer should have sought the opinion of the Social and Economic Council before initiating the dismissal procedure.

The lower courts considered that, in the absence of a redeployment proposal, the employer was exempt from its obligation to consult the Social and Economic Council, and that the late consultation had therefore no impact on the validity of the dismissal procedure.

This reasoning was censured by the French Supreme Court, which points out that the employer is obliged to consult the Social and Economic Council on the possibilities of redeploying the unfit employee before initiating the dismissal procedure.

Consequently, failure to comply with this obligation deprived the dismissal of real and serious grounds under article L. 1226-15 of the French Labor Code.

However, the employer is not required to consult employee representatives when the occupational physician’s opinion expressly states that keeping the employee in a job would be seriously detrimental to his or her health, or that the employee’s state of health makes it impossible to reclassify him or her in a job, whether for occupational inaptitude ( Cass. Soc, June 8, 2022, no. 20-22.500 ) or of non-occupational origin (Cass. Soc., November 16, 2022, no. 21-17.255 ).