Professional incompetence: the employer must be aware of the link, even partial, to an accident at work or an occupational disease

Unfitness for work is defined as the incompatibility between the state of health of the employee and his work.

When the employee is the victim of an occupational accident or an occupational disease and is subsequently recognized as unfit by the occupational physician, the employer who cannot reclassify the employee may dismiss him for incapacity and impossibility of reclassification .

This dismissal allows the employee to obtain more favorable compensation than a dismissal for unprofessional incompetence or a traditional dismissal.

Thus, he benefits from damages of an amount equal to damages for notice, even if he is unable to give his notice.

He may also claim the payment of a special severance indemnity equal to twice the statutory indemnity, unless the ordinary indemnity is a higher amount, in which case this ordinary indemnity will be applied instead of the special allowance.

However, these more favorable rules applicable to ineligible employees, victims of industrial accident (AT) or occupational disease (PD), apply when the incapacity, regardless of when it is observed or called has, at least partially, this accident or disease as its. source and the employer was aware of this professional source at the date of dismissal.

This was recently confirmed by the Court of Cassation.

The professional incapacity must be caused, even partially, by an accident at work or an occupational disease of which the employer should have been aware at the time of dismissal.

In this sense, the Court of Cassation decided in a recent judgment on September 14, 2022, confirming its position on the matter.

In this case, an employee, hired as a preparer by a publishing company, has been on sick leave since September 27, 2013. The occupational physician, after two medical examinations, the last one arranged on February 12, 2015, was declared to him. unsuited to his position. On March 19, 2015, he was dismissed due to incompetence and impossibility of reclassification.

The Paris Court of Appeal, on November 26, 2020, condemned the employer to pay damages to the employee for dismissal without real and serious reason, a notice indemnity as well as paid vacation and the special dismissal indemnity that provided for dismissals for occupational incapacity.

The Court of Appeal considers that the employee’s incapacity is of professional origin and that the employer owes him, in particular, the special compensation provided for by law. To reach this decision, the judges relied on the medical documents produced by the employee, and established a link between the acts of moral harassment and the deterioration of his state of health, a situation that led to the absence of the employee’s ability.

The employer, dissatisfied with this decision, appealed to the Court of Cassation.

In support of its appeal, the employer recalls that employees who are victims of an accident at work or an occupational disease benefit from a specific procedure (especially the doubling of severance pay) when the employee is disabled, regardless it is observed or requested, is caused, even partially, by an accident at work or an illness at work, and this AT/MP must be known to the employer at the time of dismissal.

That doesn’t seem to have happened here.

And the employer is right to insist. The Court of Cassation, under the visa of article L. 1226-10 of the Labor Code, nullifies and annuls the decision of the Paris Court of Appeal.

Senior justices will consider that the Court of Appeal has:

  • or found that the incapacity was, at least partially, caused by an accident at work or an occupational disease;
  • or verified that the employer was aware of this source on the date of dismissal.

However, these two conditions are combined to allow the use of a specific method in incapacities of professional origin. The Court of Appeal did not consider initial layoffs as well as extension layoffs with “common law” sickness grounds. The employer cannot accurately predict a possible, even partial, professional nature of these stops.

The case was sent back to another appeals court for a retrial.

Cour de cassation, social chamber, September 14, 2022, n° 21-11.278 (Professional incapacity must be caused, even partially, by an accident at work or an illness at work that the employer must know at the time of dismissal)

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