Actance Tribune
What's NEW under French Employment Law?
N° 17 – June 6, 2023
Unfit to work: consider home-office !
If the occupational doctor recommends the possibility of teleworking in order to redeploy an unfit employee, the employer must consider this possibility. He cannot ignore this option simply because home-office has not been implemented within the company. That is the point of the decision ruled on March 29, 2023 by the Court of cassation (n°21-15472).
Can teleworking be a redeployment measure when there is no possibility of working from home within the company?
As a reminder, if an employee is declared unfit, the employer has a duty to seek a redeployment position, unless the occupational doctor exempts him/her from doing so. The employer must rely on the medical diagnosis to redeploy the employee, if necessary by implementing measures such as a transfer, a transformation of existing jobs or reorganization of working hours. The offered position has to fit the employee’s skills and be as comparable as possible to the job previously held (art. L. 1226-2, L. 1226-10 and L. 4624-4 of the French Labour Code).
In this case, an employee was declared unfit for her position as medical secretary/manager of an occupational health center. The occupational doctor stated that she « could hold an administrative position without travel and part-time (2 days/week) working from home with appropriate adaptation of the job« .
Despite these recommendations, the employer decided to dismiss her on the grounds that there was no teleworking position within the center. He added that her activity required compliance with medical confidentiality which is inconsistent with home-office.
The employee brought her claim before the French Labour Court, arguing her employer had not faithfully performed its obligation to reclassify her. Both the French Labour Court and the Court of Appeal granted her claim. The employer therefore appealed to the Court of cassation, with no success.
The French Supreme Court upholds the Court of Appeals’s decision, emphasizing two main points:
- Whether or not the company has implemented a home-office scheme is not relevant, since « the adaptation of a remote work position may result from an addendum [to the employment contract]« .
This decision confirms that teleworking is one of the redeployment measures that can be suggested by the occupational doctor (Court of cassation, January 15th 2014, n°19-19.296).
- Teleworking can be a way of redeployment, unless it does not match the employee’s responsibilities.
In case of unfitness declared by the occupational doctor, the employer must adapt the employee’s job to remote work, if possible (Court of cassation, January 2014, n°11-28.898).
It should also be noted that some Courts of Appeal recently ruled that occupational doctors are increasingly recommending redeployment to home-office jobs, in case of unfitness to work.
The benefits are as follows: the employee is not required to get to the office due to his/her medical condition, and he/she does not have to deal with an environment that is a contributing factor to his/her unfitness.
If the employer deems telecommuting impossible, he must be able:
- To prove that serious effort has been made to implement it
- To identify the technical and operating difficulties that prevent him from complying with the doctor’s recommendations.
In any case, the mere fact that the company has not implemented teleworking is not a valid argument.
A collective termination agreement (“rupture conventionnelle collective”) is not allowed in case of a branch closure
As a reminder, a collective termination scheme allows any company to support departures on a voluntary basis, within the framework of a collective agreement signed with trade unions (see more details in the table below). The purpose of the « RCC » is to manage departures on a voluntary basis, out of the scope of the legislation on dismissals on an economic ground, targeting either workforce reduction or hiring of different profiles.
Such agreement defines the terms and conditions for the terminations by mutual consent, excluding any dismissal. It must be then approved by French Labor Administration (Dreets).
In this case a company planned to close a plant, which was to be sold. Its employees and activities were to be transferred to another facility of the company. After deciding to cease the activity, the company and the unions reached a collective termination agreement, which the French Labor Administration approved.
The company also planned to implement redundancy plan in the event that more than 10 employees refused to be transferred.
In other words, the downsizing project implied redundancies of employees, who were not willing or unable to leave the company under the collective termination agreement.
For this reason, the Dreets’ decision was challenged before the Administrative Courts by a trade union. In the end, such a procedure amounts to forcing employees to leave, without giving them any real choice.
The Council of State uphold the Court of Appeal, ruling that a collective termination agreement cannot be approved “if it is signed in the context of a branch or a company closure (…) leading to the certainty that the employees who have not opted for the collective agreement will be dismissed on an economic ground, or even dismissed as part of a redundancy plan” (Council of State, March 21, 2023, n°459626).
As a result of that decision, the branch closure and expected terminations were not possible with a collective termination agreement, since the employees were unable to really choose to leave the company.
For the first time, the Council of State’s case law confirms the Ministry of Labour’s guidelines.
In its Q&A of April 13, 2018, the Ministry had indeed stated that “the collective termination agreement cannot and must not be implemented in a context of economic difficulties leading to the permanent closure of a branch, since this would alter the voluntary nature of the scheme and not enable employees, who did not apply to leave, to be kept in their job”.
In such a case, the employer should have negotiated a redundancy plan that would have provided for the terms and conditions of the terminations by mutual agreement between the employer and the involved employees.
Focus on the French Legal Tool Box: main characteristics
On February 2022, we outlined the various legal tools available to adapt employment to the business and economic context. Collective redundancy schemes, such as “RCC” and “PSE”, can be implemented but are not always tailored to the expected plan.
The implementation of social plans is now decreasing, since companies are opting for solutions that give priority to human beings and a constructive dialogue. Prior discussion with employees is highly encouraged and recommended. Apart from the financial aspects, the human cost is far from being ignored.
In this respect, the French Legal Tool Box has developed over the years.
Here you can find a synthesis of the main schemes designed to enhance a company’s competitiveness, focusing on their terms & conditions:
