Intro LinkedIn: Dismissal on grounds of incapacity is riddled with pitfalls. Current events have given me an opportunity to focus on the letter of dismissal and remind you that the merits of dismissal can sometimes hang by a thread: a simple verification or word… which is not set out in any legal text! In this article, I present three tips on how to successfully draft a letter of dismissal for incapacity.
Dismissal on the grounds of incapacity is riddled with pitfalls. Current events have given us an opportunity to focus on the letter of dismissal and remind you that the merits of dismissal can sometimes hang by a thread: a simple verification or word… which is not set out in any legal text!
Make sure that the period for contesting the notice of incapacity has expired
Remember that the employee (and, for that matter, the company) has a period of 15 days commencing receipt of the notice of incapacity within which the matter can be referred to the industrial tribunal and an application filed requesting that the occupational doctor’s decision be reversed (Labour Code, Articles L. 4624-7 and R. 4624-45).
You may think that this is a theoretical risk. But think again. The employee has an interest in making the notice of incapacity, the grounds of his dismissal, disappear even in situations where the incapacity has been triggered by the employee so that he can extricate himself from a situation of conflict.
Then, you may say to yourself that the 15 days have surely passed since sending the letter of dismissal as it was first necessary to look for a redeployed position and observe the various steps of the dismissal procedure. Here again, nothing could be less sure as the period only begins if receipt of the incapacity notice can be dated with absolute certainty, which supposes that it was either delivered by hand with signature upon receipt or it was sent by registered letter with acknowledgement of delivery.
If the occupational doctor delivered the notice of incapacity with signature upon receipt, then there is no problem. The period for contesting the notice of incapacity has started and will have expired on the day the letter of dismissal is sent. However, if, as in 99.99% of cases, the occupational doctor did not bother with this formality, then the period has not started to run and the matter can be indefinitely referred to the industrial tribunal (Court of Cassation, labour division 2 March 2022, n° 20-21715, Association Vivre et devenir Villepinte Saint-Michel) with the risk that the industrial tribunal reverses the occupational doctor’s decision and strips the dismissal of its merits!
Our advice is, therefore, to send a copy of the incapacity form by registered letter with acknowledgement of receipt in order to be certain that the countdown for the period of contesting the notice has begun.
Mention “incapacity” and “impossibility of redeployment”
Contrary to what might be thought, it’s not the incapacity that legitimizes the dismissal but the impossibility of redeploying the employee to a position compatible with his residual aptitude (Labour Code, Articles L. 1226-2-1 and L. 1226-12). This is the reason why the letter must contain these two terms (and not just be mentioned in the “subject” heading of the letter, as we have already seen).
There may be several causes behind this impossibility: the occupational doctor may have ruled out any redeployment; the company or group may have no position to offer, the employee may have refused the redeployment positions, which he has the right to do.
In all these situations, the letter must mention both “the medically-recorded incapacity” and “the impossibility of redeployment”.
There are no exceptions to this procedural formality. For example, indicating that the employee refused all of the positions put forward, will not be sufficient to make up for absence of the second term, even though the impossibility of redeployment is deduced from the employee’s refusal (Court of Cassation, labour division, 14 December 2022, n° 21-17.664, Association des papillons blancs du Finistère).
If the second term is not detailed in the letter, it’s the entire statement of reasons that risks collapsing, exposing the company to a sanction for dismissal without real and serious cause (with compensation capped at 6 months’ gross salary when incapacity results from a work-related accident or illness).
This catastrophic scenario nevertheless supposes that the (well-advised) employee asked the company to specify the grounds for his dismissal and that the (badly-advised) employer did not seize the opportunity to correct this omission. The procedure of specifying is framed by strict timelines and formalities: the employee’s request must especially be made within 15 calendar days following receipt of the letter of dismissal (Articles L.1235-2 and R.1232-13 of the Labour Code). In the absence of any request by the employee in the form and within the timeline laid down by law, the omission will be considered as simply “inadequate grounds” and sanctioned by compensation capped at one month’s gross salary if the dismissal is in other respects based on a real and serious cause.
Draw inspiration from sample letters placed on line by the Ministry of Labour
If you’re not sure of yourself, you can always draw inspiration from the sample letters of dismissal placed on line by the Ministry of Labour, on its Digital Labour Code website…or call upon the services of a lawyer who specialises in this matter!