An employee declared unfit for work may be dismissed for misconduct if he or she hinders redeployment.

In a decision handed down by the Conseil d’Etat, it was ruled that a protected employee declared unfit by the occupational physician cannot be dismissed for a reason other than inaptitude, unless the employee obstructs the search for a new position.

In this case, a protected employee was dismissed after being declared unfit for her job by the occupational physician. However, the industrial tribunal declared the dismissal null and void, as the company had not obtained prior authorization from the labor inspector, and ordered her reinstatement. Following this, the company pursued the outplacement procedure and summoned the employee on several occasions, but she refused to attend. The labor inspectorate, which was duly notified this time, authorized the dismissal.

However, in the context of the employee’s challenge, the Administrative Court of Appeal overturned this decision, in light of Articles L. 1226-10 and L.1226-12 of the French Labor Code, which stipulate that once an employee has been declared unfit for work, the employment contract can only be terminated if it remains impossible to offer a job, or if the job offered is refused.

The employer then appealed to the Conseil d’Etat.

Unsurprisingly, the High Jurisdiction followed the reasoning of the Administrative Court of Appeal, ruling that “when an employee is declared unfit for his workstation by an opinion of the occupational physician, the labor inspector cannot in principle, subsequent to this opinion, authorize dismissal for a reason other than unfitness”.

However, the Conseil d’Etat censured the decision on another point, considering that the court should have examined whether the employee’s refusal to attend the summonses sent to her by the employer with a view to her redeployment had made it impossible for the employer to fulfill its redeployment obligation. Adding that “in these particular circumstances, he could have legally considered dismissing the employee for a reason other than unfitness, such as disciplinary action.”

This decision is perfectly in line with the jurisprudence of the French Supreme Court (Cour de cassation), which recognizes a number of exceptions to the dismissal of an employee declared unfit for work for reasons other than unfitness. Indeed, the French Supreme Court upheld the disciplinary dismissal of an employee who had refused an outplacement position, deliberately evading the employer’s new summons to appear before the occupational physician to look for other outplacement possibilities, thereby knowingly obstructing the search for a suitable position. (Cass. Soc. June 22, 2011, n°10-30.415 FS-B n°15).

Administrative and judicial jurisdictions share the same opinion: an employee declared unfit for work by the occupational physician, whether protected or not, cannot be dismissed for a reason other than unfitness, unless the latter is an obstacle to the procedure for finding another job.