Work incapacity: omitting "seriously" does not affect exemption from redeployment

When an employee is declared unfit for their post, the employer must in principle seek to redeploy them to another job. But in certain cases, the occupational physician may exempt the employer from this obligation. A recent Court of Cassation decision clarifies the conditions for this exemption and resolves an ambiguity that was debated.

The principle: obligation to redeploy

When an occupational physician declares an employeeunfit for their post, the employer cannot dismiss them immediately. They must first seek another job suited to their capabilities, within the company or group.

This redeployment obligation is important protection for the employee. It prevents them being shown the door overnight because of a health problem.

The exceptions: when the employer is exempt from searching

In two cases, the employer is exempt from seeking redeployment:

Case 1: The incapacity opinion states thatany retention of the employee in a job would seriously harm their health.

Case 2: The opinion states thatthe employee's state of health prevents any redeployment.

In these situations, the occupational physician considers that the employee simply cannot continue working in the company, whatever post is offered. Seeking redeployment would therefore make no sense.

The case: the word "seriously" was missing

An employee was declared unfit by the occupational physician. The opinion stated that"any retention of the employee in a job would be harmful to their health".

Did you notice? The word"seriously"does not appear in the opinion.

The employer considered it was exempt from redeployment and dismissed the employee for incapacity. The employee challenged the dismissal before the courts. Their argument: as the incapacity opinion did not state that retention would be"seriously"harmful, the employer was not exempt from seeking another post.

The Court of Cassation decision

The Court of Cassation rejected the employee's argument. Its position is clear:

Omission of the term "seriously" does not alter the scope of the mention relating to exemption from redeployment and has no bearing on the employer's inability to seek redeployment.

In other words, absence of the word "seriously" is treated as asimple drafting imprecisionthat does not call exemption from redeployment into question. What matters is that the occupational physician indicated that retention in the job would be harmful to the employee's health.

What this means for employers

Stronger legal certainty

This decision secures employers facing imperfectly drafted incapacity opinions. A wording oversight can no longer be used by the employee to challenge dismissal.

The importance of the physician's intention

Judges now look at theintentionof the occupational physician rather than the exact wording of the opinion. If the general meaning is clear (retention in the job is harmful to health), exemption applies even if the wording is not perfect.

What this means for employees

This decision reduces scope to challenge on purely formal grounds. An employee wishing to challenge dismissal for incapacity must rely on arguments other than drafting imprecisions in the medical opinion.

Practical advice

For employers

• Keep the occupational physician's incapacity opinion carefully
• Check that the opinion mentions one of the two exemption formulae (even if imperfectly drafted)
• If in doubt about the scope of the opinion, ask the occupational physician for clarification

For occupational physicians

• Prefer the exact wording provided for in the Labour Code
• Where redeployment is exempt, be explicit on the reason (harm to health or medical impossibility)

Key takeaways

• The employer is exempt from redeployment if the incapacity opinion states that retention in the job would beharmful to the employee's healthof the employee
• Omission of the term"seriously"does not call this exemption into question
• Judges favour thephysician's intentionover the exact wording of the opinion
• This decisionsecures employersagainst challenges on formal grounds

This case law provides welcome clarification on a subject that could generate costly disputes over pure form.