Employee Unfitness in France: Step-by-Step Redeployment and Dismissal Procedure
An employee’s unfitness (“inaptitude”) for their position is established by the occupational physician (“médecin du travail”) during the return-to-work medical examination or a medical check-up. It triggers a procedure governed by Articles L.1226-2 to L.1226-4-3 (non-work-related unfitness) and L.1226-10 to L.1226-12 (work-related unfitness) of the French Labour Code. Before proceeding with any dismissal, the employer must seek redeployment. Failure to comply with this procedure renders the dismissal void or without real and serious cause.
Step 1: Establishing the Unfitness
Since the Labour Act (“loi Travail”) of 8 August 2016, unfitness may be established in a single medical examination by the occupational physician (compared to two previously). Article R.4624-42 nevertheless provides that a second examination may be necessary if the physician deems it useful. The unfitness assessment must be issued on the statutory form and must state the physician’s conclusions regarding the employee’s capacity. The physician must also specify whether the employee’s state of health precludes any redeployment (exemption from the redeployment obligation). The unfitness assessment may be challenged before the labour court (“conseil de prud’hommes”) in summary proceedings (Article L.4624-7), within fifteen days. The occupational physician must have carried out a study of the position and working conditions and consulted with both the employer and the employee.
Step 2: Seeking Redeployment
Unless exempted from the redeployment obligation, the employer must seek a suitable redeployment position adapted to the employee’s capacities. The search must be conducted within the company and, where applicable, within the companies of the group. The redeployment position must be as comparable as possible to the previous one, if necessary through measures to adjust, adapt or transform the position, or to reorganise working time (Article L.1226-2). The employer must take into account the occupational physician’s recommendations. Redeployment proposals must be concrete, specific and individualised. They must be made in writing, and the employee must be given a reasonable period to respond. If several positions are available, all must be offered. The redeployment search must be genuine and serious.
Step 3: Consulting the Works Council (CSE)
Before offering a redeployment position or establishing that redeployment is impossible, the employer must consult the works council (CSE) (Articles L.1226-2 and L.1226-10). This consultation is mandatory whether the unfitness is work-related or not. The CSE is consulted on redeployment possibilities and issues an opinion. Failure to consult constitutes an irregularity giving rise to a right to compensation. The consultation must address the actual redeployment proposals or the reasons why redeployment is impossible.
Step 4: Exemption from the Redeployment Obligation
The occupational physician may state in the unfitness assessment that any continued employment would be seriously detrimental to the employee’s health or that the employee’s state of health precludes any redeployment. In both cases, the employer is exempt from the redeployment obligation (Articles L.1226-2-1 and L.1226-12). The employer may then proceed directly with dismissal for unfitness without seeking redeployment. This exemption relieves the employer of an often complex obligation but does not exempt it from the dismissal procedure itself (preliminary meeting, reasoned notification).
Step 5: Dismissal for Unfitness
If redeployment is impossible, refused by the employee, or the physician has granted an exemption, the employer may proceed with dismissal for unfitness. The dismissal letter must state the unfitness and the impossibility of redeployment (or the exemption). The procedure for dismissal on personal grounds applies (preliminary meeting, notification by registered letter with acknowledgment of receipt). An employee dismissed for non-work-related unfitness is entitled to the statutory severance pay but not to a notice period (the contract ends upon notification, Article L.1226-4). For work-related unfitness, the indemnities are doubled (special indemnity = 2x statutory severance pay + compensatory indemnity equal to the notice period, Article L.1226-14). If the employer neither dismisses nor redeploys the employee within one month of the unfitness assessment, it must resume paying the salary (Article L.1226-4).
Pitfalls to Avoid
Employers should avoid several common mistakes: dismissing before the occupational physician’s unfitness assessment, omitting the CSE consultation, offering redeployment positions incompatible with medical recommendations, failing to document the redeployment search, confusing work-related and non-work-related unfitness (different compensation regimes), or exceeding the one-month deadline without dismissing or redeploying. DAIRIA Avocats assists employers in managing unfitness and redeployment procedures.
Key takeaway: Medical examination → unfitness assessment → CSE consultation → redeployment search → dismissal if impossible. A one-month deadline applies to redeploy or dismiss, failing which the salary must be resumed.
Employer Obligations Regarding Health and Safety at Work
The employer has a duty of safety (“obligation de sécurité”) towards its employees, based on Article L.4121-1 of the French Labour Code. It must take the measures necessary to ensure the safety and protect the physical and mental health of workers, including:
- Occupational risk prevention and hardship prevention measures
- Information and training measures
- The implementation of a suitable organisation and appropriate means
These measures are based on the 9 general principles of prevention set out in Article L.4121-2: avoiding risks, assessing risks that cannot be avoided, combating risks at source, adapting work to the individual, taking account of the state of technical progress, replacing what is dangerous, planning prevention, giving priority to collective protection measures, and providing appropriate instructions.
The Single Occupational Risk Assessment Document (DUERP), provided for in Article R.4121-1, is mandatory in every company from the first employee. It must be updated at least annually in companies with at least 11 employees, and whenever a significant change alters working conditions.
Act No. 2021-1018 of 2 August 2021 strengthening occupational health prevention broadened the obligations relating to the DUERP, notably by requiring it to be retained for 40 years and filed electronically. See our employment law page for further details.
Managing Unfitness: Procedure and Obligations
Employee unfitness, established by the occupational physician in accordance with the procedure set out in Article L.4624-4 of the French Labour Code, imposes a redeployment obligation on the employer (Article L.1226-2 for non-work-related unfitness, L.1226-10 for work-related unfitness).
The procedure is as follows:
- The occupational physician establishes the unfitness after a medical examination and, if necessary, a study of the position and working conditions
- The employer has one month from the unfitness assessment to redeploy or dismiss the employee
- The redeployment search must be genuine and serious, covering all available positions within the company and the group
- The CSE must be consulted on the redeployment proposals (Articles L.1226-2 and L.1226-10)
- If redeployment is impossible (or if the occupational physician states that any continued employment would be seriously detrimental to the employee’s health), the employer may proceed with dismissal for unfitness
The French Supreme Court (Cour de cassation) has held that an employer cannot merely invoke the absence of an available position without demonstrating the concrete redeployment steps taken within the company and the group.
Checklist: Health and Safety Compliance at Work
- ✅ Prepare and update the DUERP (at least annually for companies with ≥ 11 employees)
- ✅ Organise mandatory medical examinations (information and prevention visit, enhanced individual monitoring, return-to-work visit, mid-career visit)
- ✅ Implement enhanced individual monitoring for high-risk positions (Article R.4624-22 et seq.)
- ✅ Appoint one or more employees competent in risk protection and prevention (Article L.4644-1)
- ✅ Train employees in workplace safety (Article L.4141-2)
- ✅ Maintain the mandatory registers (register of minor accidents, safety register)
- ✅ Consult the CSE (or the CSSCT) on health and safety matters
- ✅ Report workplace accidents within the statutory deadlines
- ✅ Contact our experts for a compliance audit
Frequently Asked Questions
What are the limitation periods in French employment law?
The main limitation periods are: 1 year to challenge a dismissal, 2 years for actions relating to the performance of the employment contract, 3 years for claims for payment of wages, and 5 years for psychological harassment or discrimination (Article L.1471-1 of the French Labour Code).
How does a hearing before the labour court (conseil de prud’hommes) proceed?
Labour court proceedings begin with a conciliation phase before the conciliation and orientation board (BCO). If no agreement is reached, the case is referred to the judgment panel. The procedure is oral, and the parties may be assisted or represented by a lawyer, a union defender, or a spouse.
Can the employer unilaterally change the working conditions?
The employer may change the working conditions (non-essential elements) under its management authority. However, any change to an essential element of the contract (remuneration, job classification, working hours, place of work beyond the geographical area) constitutes a modification of the contract requiring the employee’s consent (Cass. soc., 10 October 2000, No. 98-41.358).
What documents must the employer provide at the end of the contract?
The employer must provide the employee with: the work certificate (Article L.1234-19), the France Travail certificate (Article R.1234-9), the final settlement receipt (“reçu pour solde de tout compte”, Article L.1234-20), and a summary of all employee savings amounts. Failure to provide these causes a loss giving rise to a right to damages.
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