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Judgment of the social chamber of the Court of Cassation of October 8, 2014 n° 13-11.789
By Maître Grégory DAMY and Steeve GRASSI Law firms in Nice.
The decision of the occupational physician declaring the employee unfit is always a difficult decision to hear.
However, the consequences of this notice of incapacity are very limited and the employer is obliged to seek a reclassification solution for the unsuitable employee, by offering him a new position or by adapting the previous one.
However, it happens that the employer is unable to offer a reclassification solution, or that the employee refuses the new position offered, and the employer must then pronounce the dismissal of the employee for medically proven incapacity.
This is when the employee must be vigilant. Dismissal for incapacity gives rise to the payment of a legal or conventional severance indemnity.
It happens that certain collective agreements provide that the employee dismissed for non-professional incapacity will not be entitled to the contractual indemnity of dismissal.
The Court of Cassation has just ruled on these provisions and declared them null and void because they are discriminatory in a recital that could not be clearer:
“But given that, in the absence of an objective and relevant element justifying it, is null because of its discriminatory nature based on the state of health of the employee, the provision of a collective agreement excluding employees dismissed for cause of incapacity resulting from an illness or a non-professional accident for the benefit of the severance indemnity which it institutes”
Thus, the collective agreement cannot deprive the employee of his conventional termination indemnity in the event of dismissal for non-professional incapacity.
Protection against discrimination
Protection against discrimination is a fundamental aspect of modern societies, aimed at ensuring equal treatment and opportunities for all individuals. Discrimination can occur on the basis of various grounds, such as race, gender, age, disability, religion or sexual orientation. It undermines the principles of fairness, dignity and respect and hinders social progress.
Protecting individuals against discrimination is essential to maintaining a just and inclusive society. Laws and regulations have been established in many countries to provide legal protection and remedies to victims of discrimination. These laws prohibit discriminatory practices in various areas, including employment, education, housing and public services.
