Dismissal for unfitness: legal framework, procedure and compensation
Introduction
Dismissal on the grounds of unfitness is a specific procedure in employment law concerning employees who have been declared unfit for work by the occupational physician. This type of dismissal is based on a strict legal framework designed to protect both employer and employee. As a human resources manager, it is essential to have a good grasp of the applicable rules to avoid any disputes.
In this article, we'll look in detail at the steps involved in dismissal for unfitness, the employer's obligations, the employee's rights, and the risks involved if the procedure is not followed.
1. Definition of incapacity and legal framework
An employee's unfitness for work is determined by the occupational physician when he or she considers that the employee's state of health no longer allows him or her to occupy his or her position, and that no adaptation is conceivable.
Incapacity may be due to :
- Occupational: when it results from an accident at work or an occupational disease.
- Non-occupational: due to an illness or accident unrelated to work.
The legal framework for dismissal on grounds of unfitness is governed mainly by Articles L.1226-2 and L.1226-10 of the French Labor Code, which distinguish between unfitness for work and unfitness for non-work.
1.1. The role of the occupational physician
The occupational physician is the only person authorized to declare an employee unfit for work after at least one medical examination, except in exceptional cases where a second examination may be required within a maximum of 15 days. The doctor's opinion of unfitness must be substantiated, and must specify :
- Conclusions on the employee's suitability.
- Any restrictions.
- The impossibility of adapting the workstation (if applicable).
Once an employee has been declared unfit for work, the employer is obliged to look for another job before dismissing him or her.
2. The obligation to reclassify: an essential step
Before considering dismissal, the employer is obliged to look for an alternative position for the employee. This obligation is a sine qua non condition, unless the occupational physician has expressly stated otherwise in his opinion:
- That the employee's state of health precludes any redeployment.
- That his continued employment would be seriously detrimental to his health.
If this is not the case, the employer must explore all possibilities of redeployment within the company or group, taking into account :
- The employee's skills and qualifications.
- Compatibility of the position with medical restrictions.
- Possible adaptations to the position.
The employer must also consult employee representatives before making any decisions.
If no redeployment solution is found, or if the employee refuses a suitable redeployment proposal, the employer can initiate redundancy proceedings.
3. Procedure for dismissal for unfitness
If reclassification is impossible or refused, the dismissal procedure follows several strict steps:
3.1. Invitation to the preliminary interview
The employer must summon the employee to an interview prior to dismissal, by registered letter or by hand-delivery against receipt.
The invitation must mention :
- The purpose of the interview.
- Date, time and place of interview.
- The possibility for the employee to be assisted.
3.2. The preliminary interview
During this interview, the employer explains the reasons for the dismissal and obtains the employee's comments.
3.3. Notification of dismissal
After a cooling-off period of at least two working days, the employer sends the dismissal letter by registered mail with acknowledgement of receipt. This must contain :
- The precise reason for dismissal.
- Indication that the reclassification obligation has been met.
4. Compensation due to dismissed employees
An employee dismissed for unfitness is entitled to several types of compensation:
4.1. Severance pay
- Non-occupational unfitness: legal or contractual severance pay.
- Occupational unfitness: the legal indemnity is double that for conventional dismissal.
4.2. Compensation in lieu of notice
In principle, employees dismissed for unfitness do not have to serve their notice period. However, in the event of occupational unfitness, they are entitled to compensation in lieu of notice.
4.3. Compensation for paid vacations
If the employee has untaken leave, it must be paid in full.
5. Risks of non-compliance with the procedure
Poorly executed dismissal for unfitness can result in heavy penalties for the employer:
- Dismissal without real and serious cause: if the employer fails to meet his obligation to redeploy.
- Invalid dismissal: if the employee's unfitness is the result of an industrial accident and the employer does not prove that it is absolutely impossible to redeploy the employee.
- Damages: in the event of prejudice caused to the employee (up to several months' salary).
Conclusion
Dismissal for unfitness is a procedure governed by strict rules, requiring particular vigilance on the part of HR departments. The obligation to redeploy employees is a key stage in the process, and failure to do so can have serious consequences. Good anticipation and rigorous compliance with legal obligations will help secure the procedure and avoid litigation.
