News

26 November 2020

INAPTItude and consultation of the social and economic committee

 In three rulings, the Social Chamber of the Court of Cassation has clarified the sanction imposed on the employer in the event of failure to consult the Social and Economic Committee when the employee's declaration of unfitness is of non-occupational origin.

The employer's obligations in the event of an employee's unfitness

Since 1 January^er As of 1 January 2017, the opinion of the staff representatives is required whether the incapacity found is of occupational or non-occupational origin, whereas previously, the obligation to consult the staff representatives only existed for incapacities resulting from an occupational illness or accident.

The employer must then request the opinion of the social and economic committee. There is no formal requirement to obtain the opinion of the staff representatives, and the employer can even convene the said representatives by e-mail (Cass. soc., 23 May 2017, n^o 15-24.713). 

The Court of Cassation has clarified that the opinion of the staff representatives is only indicative.

For example, even if the members of the Committee was in favour of the dismissal of the employee. employee concerned, this did not exempt the employer from looking for a new job (Cass. soc., 6 May 2015, n^o 13-25.727).

The sanction for not consulting the employer is only specified in the context of occupational unfitness

The law of 8 August 2016 (No. 2016-1088) on work, the modernisation of social dialogue and the securing of professional careers unified the procedures applicable to dismissals following occupational and non-occupational unfitness.

Before the entry into force of the law of 8 August 2016 (No. 2016-1088), consultation of staff representatives only concerned cases of unfitness for work.

The lack of consultation resulted in the dismissal being considered as a null and void dismissal.  

The three judgments handed down by the Social Chamber of the Court of Cassation on 30 September 2020 (No. 19-16.488, No. 19-13.122 FS-PB and No. 19-11.974 FS-PBI) shed further light on the sanction imposed on the employer in the event of failure to consult the Social and Economic Committee in the event of dismissal for non-occupational inaptitude

Dismissal for non-occupational unfitness and consultation of employee representatives

Until now, the Social Chamber of the Court of Cassation had not yet expressly ruled on the sanction applicable in the event of failure to comply with the procedure for consulting the Social and Economic Committee when the unfitness is of non-occupational origin.

These three rulings provide further clarification.

Thus, the Judges specified, by the judgments registered under the n° of appeal 19-16.488 and 19-13.122, that "the employee having been declared unfit for work following a period of suspension of the employment contract as a result of an accident at work, it was the employer's responsibility to consult the staff representatives on the possibilities of redeployment before initiating the redundancy procedure.

The Court then reinforced the prerogatives of staff representatives by stating that their consultation constitutes a substantial formality even when the inaptitude has a non-occupational origin, to the extent that this opinion must also be obtained even in the absence of identification of available reclassification positions.

The judges also considered that the consultation of staff representatives was not subject to any formalism and could even be carried out by telephone conference (19-13.122).

Finally, in the last judgment under appeal no. 19-11.974, the Court of Cassation overturned the judgment handed down by the lower courts, which, by making a strict interpretation of Articles L. 1226-2 and L. 1226-2-1 of the Labour Code, did not punish the employer who had failed in his obligation to consult the staff representatives on the reclassification of an unfit employee, solely on the grounds that the inaptitude had a non-occupational origin. In other words, the dismissal had not been requalified as a dismissal without real and serious cause.

In overturning the decision of the Court of Appeal, the Social Division of the Court of Cassation decided to sanction the employer for these failures linked to the non-consultation of staff representatives in the context of a dismissal following both a non-occupational inaptitude and an inaptitude of occupational origin.

In this context, it considered that "the disregard of the provisions relating to the reclassification of an employee declared unfit following a non-occupational accident or illness, including the provision requiring the employer to consult the staff delegates, deprives the dismissal of real and serious grounds".

Consequently, two types of sanctions apply: either the requalification of the dismissal as null and void if the inaptitude is of professional origin, or the requalification as a dismissal without real and serious cause if the inaptitude is of non-occupational origin.