Incapacity and failure to notify the reasons for non-redeployment

In principle, an employer who cannot reclassify an unfit employee by offering him a new position compatible with the prescriptions of the occupational physician, must explain to the employee the reasons for opposing his reclassification. This information must be communicated in writing to the employee, before the actual start of the dismissal procedure. Since January 1, 2017, this obligation is imposed on the employer regardless of the origin of the incapacity (professional or non-professional). In the event of failure, the employer exposes himself to the payment of an indemnity to repair the damage. The Court of Cassation quickly clarified that this compensation could not be combined with any compensation for dismissal without real and serious cause, when the incapacity is of professional origin (Cass. soc., November 18, 2003, no. 01-43.710). However, a doubt remained on the principle of this non-accumulation in the event of non-professional incapacity. The Court of Cassation has definitively removed this uncertainty by recently specifying that "compensation for dismissal without real and serious cause and that for lack of written notification of the reasons opposing the reclassification are mutually exclusive" ( Cass. soc., December 15, 2021, n°20-18.782).

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