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Employers or employees, don't take this risk!
Dismissal, termination of employment, judicial resolution, resignation and contractual termination are the different ways of terminating an employment contract provided for by the Labour Code.
Case law has thus refined the rules in this area.
This is what it did in the case of the contractual termination of employment, ruling that it is not enough for the CERFA form to state that the termination agreement was drawn up in duplicate.
The duty of loyalty arising from the employment contract between an employer and an employee also applies between employees!
Employers, employees: the burden of proof for overtime is shared!
The Court of Justice of the European Union must also respect personal data
Undeclared work: what are the risks for the company?
Medical liability following a fault
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THE LEGAL WEEKLY
For a good employee management
When the employer is faced with a notice of medical unfitness
If the author of the medical opinion is not the occupational physician, the employer does not have to initiate the procedure that is required in the event of medically established unfitness.
Of course, the employer will have to take account of the doctor's opinion on the employee's state of health, in line with his obligation to prevent occupational risks, but he will not have to take account of the doctor's opinion on the employee's state of health. the obligation to adapt the workstation or provide another alternative if it was not the occupational physician who issued the notice of medical unfitness.
As soon as the occupational physician intervenes, following the first medical examination, he contacts the employer, indicating that he suspects medical unfitness for his position or for all positions and informing him of his desire to visit the company's premises.
The employer should respond favourably.
Notification of the notice of unfitness must be made no later than fifteen days after the first examination. It may happen that the occupational physician organizes a second examination of the employee, allowing him to gather the elements and clearly justify his decision.
The employer should therefore ensure that the occupational physician respects this legal deadline.
It should be noted that if the occupational physician is unable to give his opinion within the fifteen-day period, he will have the possibility of issuing an opinion of temporary unfitness.
In addition, the employer will have to find out whether the unfitness is work-related or not.
It should be noted that in the event of medical incapacity of professional origin (following an accident at work or an occupational disease) the employee benefits from a special redundancy allowance which corresponds to double the legal or conventional redundancy allowance.
The employer may also ask the occupational physician for clarification in the event of partial fitness or unfitness, provided that the physician does not simply indicate "fit" or "unfit" but makes a more nuanced decision, such as "fit subject to not" or "unfit but can perform".
If the employee contests the notice of unfitness before the Labour Court, it is in the employer's interest not to take any further steps following a notice of unfitness and not to dismiss the employee. In this case, salary payments must be resumed within one month of the notice of unfitness.
If the employee does not notify the employer of his or her challenge to the medical opinion, a decision to annul or reopen the medical opinion should be unenforceable against the employer and the dismissal for unfitness should not pose any difficulties.
However, as a matter of prudence and due to the lack of clarity in the texts, the employer must stop any dismissal procedure as soon as he is informed, even orally, that a procedure to contest the medical opinion has been initiated by the employee.
Apart from these hypotheses, when dismissal for unfitness occurs, the employer has an obligation to redeploy. The search must be real and precise (as in the case of dismissal for economic reasons). Otherwise, the dismissal will be devoid of real and serious cause.
It should be noted, however, that this is not an obligation of result and that the employer will not be sanctioned if the search for a new position has proved fruitless or if the employee himself has refused the proposed position.
Because good management of employees is crucial and contributes to the productivity of the company by avoiding litigious situations, Cécile ZAKINE assists company directors in all matters relating to the execution of employment contracts
THE LEGAL WEEKLY
The health pass: a headache for employers: between the obligation of prevention and the prohibition of dismissal, what to do?
When will employees be required to show a health pass?
As already indicated in previous legal weeklies, employees will be obliged to present a health pass to go to the places mentioned in the Law of 6 August 2021 as from 30 August 2021. For trainees and apprentices, this date is extended to 30 September 2021. For carers and people working with vulnerable people, they will have to be vaccinated by 15 September 2021.
Can the employer impose vaccination against COVID-19 as part of his obligation of prevention and safety towards his employees?
The implementation of this obligation cannot be applied to this type of vaccination until it is made compulsory by the Labour Code, as is the case for the tetanus vaccine.
This would be a violation of the Labour Code but also an infringement of the integrity of the human body and the right of everyone to freely dispose of their body as provided for in the Civil Code.
The Government has attempted to strike a balanced balance between the constitutional objective of health protection and the rights and freedoms of employees likely to be affected by emergency health measures.
The possibility of dismissal in the absence of vaccination was ruled out by the Health Crisis Management Act.
For employees on permanent contracts, the dismissal of employees who do not have a vaccination passport has been made impossible.
It was foreseen that these employees would be subject to a suspension of their employment contract with an indefinite interruption of pay.
Will employers then be able to invoke other grounds for dismissal that will be considered real and serious?
With regard to employees on fixed-term contracts, the Constitutional Council censured the law's amendment providing for the possibility of early termination of a fixed-term contract for failure to submit a health pass. The Council based its decision on a breach of equality between employees on permanent and fixed-term contracts:
" 78. Accordingly, by providing that failure to present a "health pass" constitutes grounds for terminating only fixed-term or assignment contracts, the legislator has instituted a difference in treatment between employees depending on the type of contract. nature of their employment contract which is unrelated to the objective pursued (Recital 78 of Constitutional Council Decision no. 2021-824 DC of 5 August 2021).
It is therefore the renewal of the fixed-term contract that will pose difficulties.
Furthermore, the conclusion of a permanent contract following a fixed-term contract will not be possible if the employee does not have a health pass.
Other grounds for dismissal which the employer may use without the dismissal being characterised as unfair:
- the employer may invoke the reason for dismissal linked to repeated absences disrupting the operation and organisation of the company, while checking that the company's dysfunctions are real and concrete.
- dismissal for unfitness for work does not appear to be a very safe solution for the employer. In fact, unfitness for work is defined as a lack of the physical or mental abilities and/or qualities required to perform one's duties. Assessed according to the workstation The absence of a vaccination passport does not call into question the employee's physical and mental fitness for the job. However, the absence of a vaccination passport does not call into question the employee's physical and mental fitness to carry out his duties.
It remains to be seen how the occupational medicine and labour courts will react to this question, which seems to be arising.
Finally, it is questionable whether the issue of health pass is related to the issue of discrimination on the basis of health status.
While Article L.1132-1 of the French Labour Code states that "no person may be [...] dismissed or subjected to a discriminatory measureby reason of [...] his morals, [...] by reason of his state of health", the vaccination passport is not directly linked to the employee's state of health.
It is not a question of creating inequality of treatment between employees who have a health pass and those who do not, for reasons related to their health. It is a question of establishing this distinction in treatment based on the protection of public health and the very high risk of the virus spreading on the national territory. Thus, as in the case of unfitness, it is not directly a question of the employee's state of health, so that the provisions of the Labour Code prohibiting all forms of discrimination could not, in the end, apply to this new situation.
It therefore remains to be seen how the labour courts will rule on the disputes that will arise from the Law of 6 August 2021.
Cécile ZAKINE will accompany you from the beginning of the school year on these issues and will assist you in court in the event of a dispute
Cécile ZAKINE assists company directors with all issues relating to labour law and contract law.
Because good management of employees and well-established contracts avoid turnover, sick leave, conflicts that hamper the productivity of a company and legal disputes.
