Employee Unfitness: Employer Redeployment Obligations and Dismissal Procedure

Quick answer. When an occupational physician declares an employee unfit for work, the employer must actively seek redeployment suited to the employee's abilities within one month of the medical examination. Failing redeployment or dismissal within this period, the employer must resume paying the employee's previous salary. Dismissal due to work-related unfitness entitles the employee to severance equal to double the statutory minimum plus a notice compensation indemnity.

Why does unfitness concern every employer?#

When an occupational physician declares an employee unfit for work following illness, a workplace injury, or occupational disease, it triggers a critical legal event for both the employee and the employer. The employee faces uncertainty about job continuity; the employer must navigate strict procedural requirements under the French Labour Code (Articles L1226-2 and L1226-10) to avoid liability.

This period is legally sensitive. Failure to comply with the statutory framework—particularly the one-month deadline and redeployment search requirements—can result in claims for wrongful dismissal, damages for procedural failure, and orders to reinstate the employee with back pay.

Legal Foundation#

• Article L1226-2: Unfitness following non-occupational illness or accident.
• Article L1226-10: Unfitness following workplace accident or occupational disease.
• Article L1226-4 (and L1226-11): One-month deadline and salary resumption.
• Article L1226-2-1 (and L1226-12): Exemption from redeployment if continuation would be gravely harmful to health.
• Article L1226-14: Enhanced severance for dismissal due to work-related unfitness.

Definition and Medical Assessment#

Occupational unfitness is a formal declaration by the occupational physician (médecin du travail) certifying that an employee can no longer safely perform their current role or any other position within the company due to illness or injury. This declaration follows:

1. At least one medical examination of the employee (fitness-to-return visit, periodic examination, or on-request visit).
2. A study of the job role and working conditions.
3. Consultation with the employee and employer to explore adaptation or redeployment possibilities.
4. Possibly a second examination within 15 days if the physician requires additional information.

Article R4624-42 of the Labour Code sets out these requirements: a finding of unfitness presupposes at least one medical examination, a study of the role and working conditions, and an exchange with the employee and the employer.

Key Distinction: Non-Occupational vs. Work-Related Unfitness#

Contents of the Physician's Notice#

The occupational physician issues an unfitness notice to the employee and sends a copy to the employer. This notice must specify:

• Positions or job domains incompatible with the employee's health condition.
• Residual capacities the employee retains (if any).
• A statement, if applicable, that any continuation in employment would be gravely prejudicial to health (L1226-2-1, L1226-12).
• Or a statement that the employee's health status precludes redeployment to any other role.

Notification Deadline#

The occupational physician issues the unfitness notice to both the employee and the employer (electronically or by hand against receipt).

The one-month period to redeploy or dismiss runs from the return-to-work medical examination that established unfitness (Article L1226-4 or L1226-11).

Active Redeployment Search#

Upon receiving the unfitness notice, the employer must actively search for a suitable position. This search must:

1. Propose employment matching the employee's capacities, aligned with the physician's medical conclusions.
2. Solicit the Works Council (CSE) opinion if one exists in the company.
3. Cover all vacant or adaptable positions throughout the company and group entities located in France.
4. Consider job transformations or adjustments (reduced hours, task modification, workstation adjustment).

The Critical One-Month Deadline#

The employer has one calendar month (30 days) from the date of the return-to-work medical examination to either:

• Redeploy the employee to a compatible position, or
• Dismiss the employee following proper procedure, or
• Obtain written confirmation from the physician that continuation is gravely harmful or redeployment is medically impossible.

If none of these occurs, upon expiration of one month, the employer must resume paying the employee's previous salary.

Concrete Example#

An industrial worker in a Paris-based SME sustains a non-occupational injury (arm fracture). His return-to-work medical visit occurs on June 10. The occupational physician notifies unfitness to the worker's current role on June 15. The employer has until July 15 to either redeploy or dismiss. If the employer proposes on July 12 a quality assurance position suited to the employee's remaining capacities, redeployment is valid. If no action is taken, on July 16, the employer must resume paying the employee's original salary.

Suitable Employment Criteria#

The proposed position must meet these standards:

1. Align with medical conclusions: Must not aggravate the employee's health condition.
2. Leverage employee skills: Reasonably utilize the employee's training and experience.
3. Be a real, vacant position: Not a fictional role or obvious demotion.
4. Provide equal or better compensation: Unless the employee agrees otherwise.
5. Be located within France: Group entities anywhere in metropolitan France or overseas territories may offer positions.

Works Council (CSE) Consultation#

In companies with 50 or more employees (or with an established CSE), the employer must consult the committee before dismissing for unfitness. The consultation addresses:

• Positions potentially suitable for the unfit employee.
• Possible workstation adjustments or accommodations.
• Training or retraining pathways.

Employee Acceptance or Refusal#

• If the employee accepts the proposed position: Redeployment takes effect. The employment contract continues in the new role.
• If the employee declines the position: A simple refusal does not automatically justify dismissal. The refusal must be unreasonable or repeated, and the position must genuinely suit the employee's capacities. A justified refusal (genuinely incompatible work, obvious demotion) may protect the employee's rights.

The Protective Mechanism#

Article L1226-4 establishes crucial protection: if, after one month expires, the unfit employee has neither been redeployed nor dismissed, the employer must resume paying the salary corresponding to the position the employee held before contract suspension.

This salary includes:

• Base salary.
• Salary supplements (bonuses, benefits, etc.) to which the employee was entitled in their prior role.
• Employer social contributions (and employee statutory deductions).

Payment occurs monthly until a final resolution (redeployment or dismissal) is formalized.

Duration of This Protection#

This arrangement is not indefinite. The employer may dismiss at any time following proper procedure (CSE consultation if required, formal notification, documented impossibility of redeployment). However, extended salary maintenance without evidence of genuine redeployment efforts creates liability for wrongful dismissal; courts scrutinize such delays carefully.

When Redeployment Obligation is Waived#

Articles L1226-2-1 (non-occupational unfitness) and L1226-12 (work-related unfitness) permit an exemption from redeployment in two specific scenarios:

1. The physician's notice explicitly states that any continuation in employment would be gravely prejudicial to health: For example, a progressively degenerative illness where any work—regardless of type—poses serious health risk.

2. The employee's health condition precludes redeployment to any position: Total occupational unfitness, medically documented, with no prospect of professional reintegration.

Procedure for Exemption Cases#

When one of these conditions is established in writing by the occupational physician, the employer may proceed directly to dismissal without actively seeking redeployment. However, the employer must still:

• Notify the employee in writing of the reasons for waiving redeployment search (Article L1226-2-1).
• Comply with standard personal grounds dismissal procedure (notice of hearing, meeting opportunity, formal dismissal letter).
• Pay statutory (or collectively agreed) severance indemnities.

Dismissal for Work-Related Unfitness#

When unfitness stems from a workplace accident or occupational disease, dismissal triggers enhanced severance (Article L1226-14):

Worked Example#

An employee with 8 years of service earns €2,500 monthly and contracted an occupational disease. Unfitness is declared.

• Statutory base indemnity = €2,500 × (1/4) × 8 = €5,000
• Special (doubled) indemnity = €5,000 × 2 = €10,000
• Notice compensation (e.g., 2-month notice) = €2,500 × 2 = €5,000
• Total minimum = €10,000 + €5,000 = €15,000

(Plus employer social contributions, unpaid leave indemnity, etc.)

Common Pitfalls and Risks#

1. Omitting Works Council Consultation In companies with 50+ employees, failing to consult the CSE before unfitness dismissal vitiates the procedure and exposes the employer to reversal or damages.

2. Respecting the One-Month Deadline Many employers mistakenly believe they have several months. The deadline is strict: one month from the medical examination, not notification. Dismissal after one month without prior redeployment may be recharacterized as wrongful termination.

3. Documenting Redeployment Efforts The employer must preserve evidence of redeployment search: job listings, employee correspondence, CSE minutes, meeting records. Without documentation, courts presume no genuine effort.

4. Distinguishing Sick Leave from Contract Suspension During ordinary sick leave, the contract remains active; the employee remains employed. Contract suspension begins only after the unfitness notice. Dismissal issued during sick leave, before the return-to-work visit and unfitness declaration, may be deemed wrongful.

5. Scrutinizing the Unfitness Notice A notice stating "unfit for position X but potentially suitable for positions Y and Z" does not exempt redeployment efforts. However, an explicit notice "redeployment is medically impossible" allows immediate dismissal.

6. Not Conflating Unfitness with Economic Dismissal Occupational unfitness is not an economic dismissal. Notification rules and indemnities differ fundamentally. Unfitness dismissal is a personal grounds termination.

At Hayot Expertise, we have advised roughly 30 French-based companies since 2024 on unfitness cases. One case stands out: a Paris-based creative SME where an art director developed repetitive strain injury after years without workstation adjustment. Unfitness was declared, but the employer, unaware of the one-month deadline, delayed action for four months, continuing to pay full salary. The employee sued. Although the employer had legal grounds to dismiss on redeployment impossibility, the judge ruled the four-month delay—combined with failure to consult the CSE—constituted wrongful dismissal, awarding the employee substantial damages.

This case illustrates critical lessons:

• Speed is a legal requirement, not merely operational best practice.
• CSE consultation is mandatory in applicable firms, even those with minimal union presence. Absence of consultation invalidates dismissal regardless of substantive merit.
• Work-related unfitness confers enhanced protection: double severance and heightened procedural rigor. Employers must budget for this cost.

Fiscally and payroll-wise, unfitness generates important implications: severance for work-related unfitness enjoys partial social contribution exemptions (within statutory limits per Article L1226-14), whereas salary paid during redeployment search is fully taxable and subject to full contributions. Tight management of redeployment timelines directly affects the real cost to the employer.

Hayot Expertise Recommendation. Upon receiving an unfitness notice, act within two weeks of notification: document positions explored, consult the CSE if required, and formalize your decision (redeployment or dismissal) in writing. Do not delay past one month—litigation risk rises sharply. If the physician explicitly notes redeployment impossibility, obtain this in writing and proceed with dismissal per statutory rules. When in doubt about procedure specifics (regulated sectors, collective agreement provisions, group companies), draw on our payroll and HR practice or a specialised legal advisory service: the cost of preventive counsel is trivial compared to the damages from procedural error.