Notice period execution – Redeployment – Skills assessment – Validation of Acquired Experience (VAE) – Training
Social newsletter no. 2
Should an employee deemed unfit for work, who does not serve a notice period, be informed of the possibility of requesting a skills assessment, a VAE (Validation of Acquired Experience) or a training course?
Yes, according to the Court of Cassation. It has just ruled that "the employer must, in the dismissal letter, except in cases of gross misconduct, inform the employee of their right to request, until the end of the notice period (whether or not it is actually worked), or for a period equal to the applicable notice period, to benefit from a skills assessment, validation of prior learning, or training" (Cass. soc. 25 September 2013, No. 12-20310 P). Any failure to comply with this obligation "necessarily causes harm to the employee."
In this particular case, it was argued that the employee's inability to work their notice period due to physical incapacity relieved the employer of the obligation to provide this information.
This decision is in line with the growing body of case law that tends to increase the number of mandatory statements in the dismissal letter.
How far does the obligation to reassign an unfit employee extend?
In any case, it does not require the employer to create two jobs to retain the employee. Thus, the Court of Cassation overturned an appeals court ruling that had held that the private employer, who had dismissed a housekeeper declared partially unfit for work and hired another part-time employee during her absence, had not established that it was impossible to adapt the latter's workstation by offering her tasks suited to the recommendations of the occupational physician (Cass. soc. 10 July 2013, No. 12-21380 P).
In so ruling, the appeals court had added obligations that the collective bargaining agreement for private employers (IDCC 2111) did not stipulate regarding redeployment.
Does the termination of a fixed-term contract due to incapacity require a preliminary interview?
The Court of Cassation has expressed a contrary opinion: The procedure for terminating a fixed-term employment contract due to the employee's incapacity, as determined by the occupational physician, as provided for in Article L.1243-1 of the French Labor Code, does not require a preliminary meeting (Cass. Opinion of October 21, 2013, No. 15013 – Request No. 13-70006).
According to Article L.1243-1 of the French Labor Code, unless otherwise agreed by the parties, a fixed-term contract may only be terminated before its expiry date in cases of serious misconduct, force majeure, or incapacity determined by the occupational physician. The question of a preliminary meeting was likely to arise since case law mandates such a meeting in the event of early termination for serious misconduct, even though the legislation, in principle, excludes the application of dismissal procedures to fixed-term contracts, regardless of the reason for termination.
