Notice of incapacity containing an error in the name of the position occupied by the employee

In a judgment of October 25, 2023 the Court of Cassation reviews the powers of the industrial tribunal judge seized of a challenge to an opinion of the occupational doctor.

In this case, an employee was declared unfit for her position, with the occupational doctor specifying: “the employee's state of health prevents any reclassification in a job”.

The latter seized the industrial tribunal according to the accelerated procedure on the merits, for the purposes of:

• Mainly, obtain the annulment of the notice of incapacity pronounced,

• In the alternative, appoint a medical labor inspector and say that the decision to be taken will replace this notice of incapacity.

The Industrial Tribunal did not grant these requests. The employee then appealed to the Court of Appeal.

Before this Court of Appeal, the object of the employee's requests was the same: first to obtain the cancellation of the notice of incapacity, and if this request had to be rejected, obtain the appointment of a doctor in order to assist the court on medical questions before substituting its decision for this opinion of incapacity.

To decide, the Court of Appeal took chronologically the various follow-up certificates carried out by the occupational doctor, found that the latter had incorrectly referred to a position on the notice of incapacity which was no longer occupied by the employee and that it was not established that the job study carried out by the occupational doctor corresponded to the position actually occupied by the employee.

In doing so, the Court of Appeal granted the employee's main request and concluded that the notice of incapacity was annulled.

Wrong for the Court of Cassation, under the terms of its judgment of October 25, 2023, which recalls the terms of article L. 4624-7 III of the Code labor: the industrial tribunal judge must substitute his own decision for the opinion of the occupational physician, after having, where appropriate, ordered an investigative measure.

A subtle way of recalling that if the trial judges conclude that an opinion from the occupational physician is annulled, they must also identify the medical conclusions which will replace this notice. Since judges are not doctors, they have the possibility of enlisting the services of competent people (labor inspector doctor or any competent third party) to enlighten them in this regard.

In other words, if the judges conclude that an opinion from the occupational doctor is annulled, they cannot refrain from making a medical decision in that 'it is based on medical elements and concerns health issues, which will replace the contested opinion.