Unexpected incapacity

For the first time, in a decision dated May 24, 2023, published in the Bulletin , the French Supreme Court (Cour de cassation) accepts that a notice of unfitness can be issued following a medical examination requested by the Employee himself, during a period of suspension of the employment contract.

While the judges had already accepted that an opinion of unfitness could be issued by the occupational physician on the occasion of any medical examination during the performance of the employment contract, this is the first time they have accepted it during a period of suspension of the employment contract, and in particular when the medical appointment is made by the employee to anticipate a risk of unfitness.

In the case cited, an employee on sick leave since November 2, 2017, decided to go to the occupational physician on November 13, 2017, even though his sick leave had not ended. The following day, November 14, 2017, the occupational physician issued an opinion of unfitness, enabling the employer to dismiss the employee for impossibility of redeployment, within one month of the medical visit.

The employee, convinced of the irregularity of the procedure, challenged his dismissal in court.

In this ruling, the French Supreme Court upheld the Court of Appeal's decision, specifying that the procedure had been fully complied with, despite the fact that the medical examination had been organized on the employee's initiative during a period of suspension of the employment contract.

It notes that the notice of unfitness has been drawn up in accordance with Articles L4624-4 and R4624-34 of the French Labor Code.
 

Above all, the Court noted that the notice of unfitness was issued after a medical examination of the patient, a study of the position and working conditions, and discussions with the employer.

Court of Cassation, Civil, Social Division, May 24, 2023, 22-10.517, Published in the bulletin