Under French law, the status of disabled worker creates a specific obligation for employers, requiring them to take “appropriate measures based on the needs of a specific situation” to enable the employee to remain in employment. Failure to take such measures may constitute a discrimination.
Based on this rule, is the employer’s simple failure to take the disability of his employee into account and to offer him the corresponding measures enough to characterize discrimination?
In a recent case heard by the French Supreme Court, an employee who was recognized disabled had been on sick leave from October 2010 to August 2015 before the occupational doctor delivered a certificate for unfitness to work (“avis d’inaptitude”). The employer then dismissed her on the ground of unfitness to work and impossibly to redeploy her (“inaptitude avec impossibilité de reclassement”).
Before the Employment Tribunal, the employee claimed her dismissal was void as she had suffered discrimination. According to the Court of appeal, the company (who employed 5,000 employees) had not taken the employee’s status into account and had not offered her any specific measures as part of the redeployment search.
This reasoning was challenged by the employer before the French Supreme Court. He was arguing that the Court of appeal had only noted an “omission”
The French Supreme Court established the principle that “the judge must, in a first place, investigate whether the employee has presented factual evidence suggesting the existence of such a discrimination”. It specifies that such evidence may be constituted by:
- the employer’s refusal, even implicit, to take concrete and appropriate measures for reasonable accommodation requested by the employee or recommended by the occupational doctor ;
- or “its refusal to comply with the employee’s request to refer the matter to a body providing assistance with the employment of disabled workers in order to seek such measures“.
The judge is required to then “investigate whether the employer demonstrates that its refusal to take these measures is justified by objective factors unrelated to any discrimination on grounds of disability”.
The employer’s mere failure to take the disabled worker status into account does not therefore per se constitute discrimination on the grounds of disability.