Occupational health services are responsible for protecting employees against any harm to their physical or mental integrity in the course of their employment. However, when they notice major difficulties, they can issue more or less binding decisions. More than a million employees would thus be affected by notices of restriction of aptitude or requests for adjustment of position, and approximately 100,000 by notices of incapacity notified by an occupational doctor.
But if these measures have no other objective than to preserve people’s health, they can have serious consequences, sometimes pushing employees and employers to challenge them.
Adaptation, reclassification or dismissal
Several medical visits punctuate the professional lives of workers. And if they are very often a pure formality, they can also make it possible to detect real physical or mental difficulties not always reconcilable with the employment of the patients. Depending on the problems detected, the occupational physician can then suggest that the employer adapt or transform the workstation of the employee concerned, or even adjust his working hours.
As a last resort, and if the employee’s state of health justifies a change of position, the professional may even be required to write a notice of incapacity, when no adequate accommodation is possible. However, this extreme decision is only taken after meticulous medical examinations, the completion of a study of the job in question and the working conditions in the company, but also, of course, discussions with the employer. on the solutions to be found.
In the worst case, if the employee cannot be reclassified to another position or if he refuses the one that has been offered, he may be dismissed for incapacity. There is then only if his disability is of professional origin that he will benefit from doubled allowances.
Competent industrial tribunals
We understand that these decisions are not always well received… This is why the law provides for a right of appeal. Previously, you had to go through a tedious process of contesting with the labor inspectorate. But the El Khomri law of August 8, 2016 put an end to this obstacle course by transferring this dispute to the industrial tribunal in 2017. Therefore, the employee concerned and the employer have 15 days to seize this jurisdiction from the notification of the proposal or the opinion of the occupational physician, and thus trigger an accelerated procedure in summary proceedings. After recalling the subject of the dispute, the first hearing will generally order an investigative measure so that the territorially competent doctor-labor inspector can shed light on the file.
Once the expert report has been submitted, the industrial tribunal judge will hold a second hearing to render his decision, which will replace the initial medical opinion. He will therefore decide whether the position in question as it is configured and exercised is compatible with the employee’s state of health, whether adjustments must, if necessary, be made to it or whether the employee is unfit to occupy it. . However, no medical reason will be specified so as not to violate medical secrecy. The labor court decision can itself be challenged before the Court of Appeal.
The reality in numbers
Five years after the transfer of this dispute to the industrial tribunals, the legal editor Lexis Nexis and the union of business lawyers in social law AvoSial wanted to assess the reality of this dispute by reviewing some 200 judgments Courts of Appeal that have intervened in the matter. This study shows that 54% of claimants are employees struggling to avoid losing their job or, failing that, to collect damages, compared to 46% of employers who generally seek to keep the employee fit to avoid the cost of terminating the employment contract for this reason.
The industrial tribunal procedure in summary proceedings also keeps its promises of speed, since it lasts an average of 3.7 months between the time of the referral and the judgment. On the other hand, the average delay reaches 1 year when the parties go as far as appeal. As for the outcome of the lawsuits, 35% of appeals filed by business leaders obtain a favorable decision, compared to 32% for those filed by employees. In the endonly a third of the opinions of occupational physicians are thus called into question by the courts.