Well seen this obligation goes extremely far

It is now twelve years has been introduced in the Labour Code provision, article l. 122-24-4 of the Labour Code, to protect wage earners have become unfit to hold their position, even outside of any fault. The employee must be seen by the physician of the work on two occasions, in separate examinations one another in an interval of fifteen days, and if the doctor concludes that the inability of the employee to perform his work, should not be a dismissal, the employer must seek by any means to "safeguard the worker's employment", as wrote Sylvie Bourgeot, then Adviser to the Court of cassation, in an article entitled "developments in the law of the health of workers."

When we talk about the obligation of reclassification to a physical incapacity, the word "stress" is not too strong. Article l. 122-24-4 requires the employer to propose an unfit employee "a job appropriate to its capabilities, taking into account written submissions of the medical work and indications that he makes on the ability of the employee to exercise one of the existing tasks in the business and also comparable as possible to the job previously held, as required by the implementation of all measures such as mutations"workstations transformations or arrangements of working time.

Very short deadlines

All research must be done in a very limited period of time since the employer has that one month is to find a job to the person concerned, or to dismiss him. If it passes this time, he will pay wages without consideration for work.

The Court of cassation interpreted this text to give the maximum of opportunities to the reclassification: it requires that the measures identified by the Labour Code are taken within the company, all combined facilities and, if applicable, the Group (Cass. soc., July 7, 2004).

In the presence of a notice of incapacity, partial or total, the employer will do well to involve the occupational physician, required by the requesting if it has not been enough explicit (Cass. Soc., July 7, 2004). But this is still not enough: even if it gives no runway for reclassification, the employer cannot hide behind this silence and must make himself proposals asking the doctor of the written conclusions (Cass. Soc., April 24, 2001). Well seen, this obligation goes extremely far. It is almost impossible on the shoulders of the employer who must communicate to reclassify including when the doctor visited a notice of inability to any job!

Demanding employees

Not surprisingly, in this context, that employees are more and more demanding, as evidenced by the following case: A driver-carrier is declared unfit for his position but capable, according to medical opinion, "to a sedentary work, type canteen or storekeeper in the pharmacy or maintenance of green spaces. Unable find employment corresponding to this definition, the employer the terminates.

The employee is the case to court, complaining of the lack of efforts made by the employer to find a solution. He has, for its part, spotted a post corresponding to his State of health. This position is occupied by one of his colleagues but it was enough for the employer to offer a standard Exchange, the colleague was responsible for the delivery and, taking the sedentary work and released.

This permutation, replies the employer, has been proposed to the colleague in question who refused. Our delivery driver think, believing that his colleague could not deny that was a change in working conditions, but, assuming that it could accept this excuse, he noted that there was another possibility. Indeed, the maintenance of green spaces was entrusted to an external company which had affected a person. It was easy for the employer to terminate the subcontract to reclassify a member of his staff.

Recalling that the reclassification "must be sought among the jobs available in the business", the Court of cassation said, as it had already done in economic dismissal (Cass. Soc., January 26, 2000), that the employer duty did not so far (Cass. Soc., November 15, 2006, no. 05 - 40 408). Not question undress Paul to wrap around Pierre!

It was worth to say!