Unfitness: Must an employer offer a higher-category job as a redeployment offer to the unfit employee?

In a case dated 21 July 2023, the French Conseil d’Etat had to answer the following question: as part of their redeployment efforts, is the employer bound to consider positions from a higher category for an employee who has been declared unfit?

Pursuant to Articles L. 1226-2 and L. 1226-10 of the French Labour Code, when an employee is medically held to be unfit to return to their former role and unless otherwise indicated by the occupational physician, the employer is bound to offer an alternative position aligned with the employee’s capabilities. This redeployment must be as similar as possible to the job previously held by the employee, while complying with the occupational physician’s recommendations.

In the case at hand, facing the redeployment of one of their employees who had been declared unfit for work, the employer argued that certain positions, although comparable, could not be offered to that employee given that they belonged to the “executive” category, while the employee was categorized as a “supervisor”.

However, the Conseil d’Etat ruled that the mere fact that potential redeployment jobs belonged to a higher job category was not sufficient to exclude them from the scope of redeployment possibilities.

Consequently, just as employers are bound to consider roles from lower categories, they must also consider positions in higher categories that could be offered as redeployment opportunities to the employee held to be unfit.