As a general principle, the occupational health physician is a major interlocutor of the employer regarding the employees’ health and safety. In particular, there exists a very specific procedure under which employees’ disability must be acknowledged by the occupational health physician in order to authorize an employer to begin a dismissal procedure.

However, such opinion of the occupational health physician is not sufficient in itself and the employer is under a general obligation to seek alternative positions for an employee whose dismissal is contemplated. As a result, a dismissal notified without complying with such reclassification obligation may lead to the termination being considered as unfair. In this respect, this obligation is strictly interpreted so that, even if the occupational health physician declares that in his/her opinion the employee is unfit for any position within the company, the employer is still formally required to seek a reclassification position for the employee. The rationale behind this is that the employer has the best knowledge of its company and therefore may envisage alternative positions / arrangements which might be suitable for the employee.

In this context, may an employer ask for clarification from the occupational health physician after the declaration of unfitness in order to demonstrate that it is not bound by a reclassification obligation?

In a recent ruling rendered by the Supreme Court on 15th December 2015, an employee was declared unfit to work. Shortly thereafter, the employer solicited an additional opinion from the occupational health physician concerning the reclassification possibilities for the employee, following which such physician specified that no position could be proposed to the employee within the company on account of her conflictual relationship with the entire hierarchy of the company. The employer subsequently dismissed the employee on the ground of her unfitness to work. Challenging such decision, the employee brought her case to the courts arguing that her dismissal was unfair since the employer did not seek an alternative position.

The Supreme Court upheld the decision of the Court of Appeal and ruled that the information provided by the occupational health physician following the official declaration of unfitness was to be taken into account in assessing the employer’s compliance with the reclassification obligation. Consequently, and taking into account the replies given by the occupational health physician in this case, the Supreme Court ruled that the impossibility of reclassifying the employee was demonstrated.

This ruling is interesting as it reflects a new tendency in case law which affords more flexibility to employers when dealing with the consequences of a declaration of unfitness to work. In application of such tendency, employers can use the opinions provided by the occupational health physician that there are in fact no reclassification possibilities open for the employee. However, such option is in any case dependent on the appreciation made by the physician who remains free to assess whether or not the health of an employee allows him/her to be reclassified. Moreover, such determinations are made on a case by case basis, and the opinions given by the occupational health physician should be taken as intimations of the employer’s impossibility to reclassify the employee rather than as clear evidence. Finally, it should be noted that the current government has just published a draft bill which intends to extend the cases in which the employer can be released from its reclassification obligation.

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