France: Redeployment of Employees Considered as Partially Unable to Continue Working in Their Current Position by the Labour Doctor: the Company Can Be Obliged to Offer the Employee Redeployment in a More Senior Position
When the Labour Doctor considers that an employee is no longer able to continue working in their current position for health reasons but can continue to work (i.e., has partial inaptitude), the company is obliged to offer the employee redeployment to a new position that considers their medical condition. Such redeployment must be sought not just within the company but also within any group entities in France. Failure to seek and offer such redeployment would result in any subsequent termination of the employment contract being considered unfair by the courts and thus giving rise to damages.
The French Administrative Supreme Court (“Conseil d’Etat”) has ruled that the fact that the only available positions were officially of a more senior level (a white-collar “cadre” position rather than a blue-collar “non-cadre” position) was not, in itself, sufficient to justify not offering the positions to the employee if such positions were, in fact, in their content, equivalent to the employee’s previous role.
Key Action Points for Human Resources and In-house Counsel
When examining possible redeployment positions for employees declared partially, it is important to look at the content of the work that the employee would be required to perform and to compare this to their skill set, irrespective of the official qualification of positions as “cadre” or “non-cadre” positions. It is also important to keep documentary evidence, like emails, of such redeployment efforts.