The French Court of Cassation has held that an expert physician may stand in where the medical labour inspector is unavailable. An explanation follows.
An employee's medical opinion of unfitness for work may be challenged by the employee or by the employer. Although complex, this procedure is essential to ensure a fair and impartial assessment of the employee's fitness to perform his or her job.
The occupational physician plays a key role in determining whether an employee is fit or unfit for his or her position. The physician's decision may have significant consequences for the employee's employment. For instance, where an employee is declared unfit, the employer must seek a redeployment option for that employee. Where no redeployment is possible, the employer may proceed with a dismissal on grounds of unfitness. Such a decision carries serious consequences and must therefore be made with the utmost rigour.
The Challenge Procedure
Where an employee or an employer wishes to challenge a medical opinion of unfitness, the challenge must be brought before the employment tribunal (conseil de prud'hommes). The time limit for bringing a challenge is fifteen days from notification of the opinion. Once the challenge has been filed, the court may appoint another physician to carry out a new medical examination. The purpose of this appointment is to guarantee an impartial and independent assessment, thereby making it possible to verify the validity of the initial opinion.
Consequences and Statistics
Where the opinion of unfitness is upheld, the employer is required to seek a redeployment option for the employee. Where no redeployment is possible, dismissal on grounds of unfitness may be considered. According to the latest data, approximately 20% of opinions of unfitness are challenged each year and, of those challenges, nearly 30% result in the initial opinion being amended. These figures demonstrate the importance of the challenge procedure and the key role of the court in appointing another physician.
Challenging a medical opinion of unfitness is an essential procedure for ensuring fairness and justice in the workplace. The roles of the occupational physician, the court and new medical examinations are central to securing an impartial and independent assessment. By complying with the applicable time limits and following the proper procedures, employees and employers can ensure that the decisions reached are fair and in accordance with the legislation in force.
Reference: judgment of the Court of Cassation of 22 May 2024.