In a decision of March 29th, 2023 (No. 21-15.472), the social chamber of the Court of Cassation considered that when the occupational doctor indicates that reclassification is possible in telework for an unfit employee, the employer must arrange a telecommuting position even though the company has not set up telecommuting.

1) Reminder of the facts and procedure

An employee was hired as a medical secretary by the Gimac health at work association, from November 25, 1982.

She most recently performed the duties of assistant coordinator of a multidisciplinary team.

Following two medical examinations on February 3 and 17, 2016, she was declared unfit for her post by the occupational doctor, who specified that she "could occupy an administrative position without travel and on a part-time basis (2 days /week) in teleworking with appropriate workstation accommodation”.

She was dismissed for incapacity and impossibility of reclassification by letter of December 7, 2016.

The employee challenged her dismissal and asked for damages for the employer's failure to comply with his reclassification obligation.

The Paris Court of Appeal, in a judgment of February 3, 2021, sentenced the employer to:

- Pay the employee a sum in damages to compensate for the prejudice resulting from the unlawful nature of her dismissal;

- Pay the employee a sum in damages due to the delay in the payment of wages.

The employer then lodged an appeal in cassation.

2) Means

The employer criticizes the judgment for ordering him to pay the employee a sum in damages in compensation for the prejudice resulting from the unlawful nature of her dismissal, whereas:

- The obligation to reclassify an employee declared unfit for his job only relates to available positions existing within the company, the employer not being required to specifically create a position adapted to the employee's abilities;

- The employer can only be forced to reclassify the employee to a teleworking position if teleworking has been set up within the company;

- The reclassification of an employee declared unfit for his job can only take place in a position compatible with the notice of unfitness and the recommendations of the occupational doctor;

Furthermore, the employer criticizes the judgment for ordering him to pay the employee a sum in damages because of the delay in the payment of wages, whereas the delay in the payment of wages does not open entitled to damages separate from interest at the legal rate only when the creditor has suffered, through the debtor's bad faith, damage independent of the delay.

3) Workaround

The social chamber of the Court of Cassation reverses and annuls the judgment of the Court of Appeal, but only insofar as it condemns the association Gimac health at work to pay the employee damages due to the delay in the payment of wages, on the grounds that the Court of Appeal did not characterize the existence of damage distinct from that resulting from the delay in the payment of debts, in contradiction with Article 1231-6 of the Civil Code.

However, the Court of Cassation rejected the grievance relating to the order for damages in compensation for the prejudice resulting from the unlawful nature of his dismissal.

Indeed, after recalling the provisions of Articles L. 12226-10 and L. 1226-12 of the Labor Code, it states that:

"It is up to the employer to offer the employee, fairly, taking into account the recommendations and indications of the occupational doctor, another job appropriate to his abilities, as comparable as possible to the job previously held, if necessary by placing implementation of measures such as transfers, transformation of existing positions or adjustment of working time”.

She infers from this that:

  "[...] the occupational physician was perfectly clear in the notice of incapacity of February 17, 2016 on the provisions to be implemented to allow the employee to keep her job, specifying that she could occupy an administrative position , without travel, part-time, telecommuting at home with appropriate workstation accommodation and confirming this opinion on June 7, 2016 in response to questions from the employer.

[…] the missions carried out […] were likely to be mainly carried out at home by teleworking and part-time as recommended by the occupational doctor.

In the light of these findings, from which it deduced that the employer had not faithfully carried out its obligation to reclassify, and without being required to carry out the research invoked by the means taken in its first branch since the arrangement of a teleworking position may result from an amendment to the employment contract, the Court of Appeal has legally justified its decision”.

4) Analysis

As a reminder, when an employee is declared unfit by the occupational physician, the employer must offer him another job appropriate to his abilities, taking into account the written conclusions of the occupational physician and ensuring, if necessary, transfers, adjustments , adaptations or transformations of existing positions or organization of working time (articles L. 1226-2 and L. 1226-10 of the Labor Code).

On the other hand, the employer is not under the obligation to specifically create a position adapted to the capacities of the employee (see not. Cass. soc., April 10, 2019, No. 18-12.164).

The debate therefore consisted of knowing whether teleworking was only a way of adapting a position or, on the contrary, creating a position in the event that the company did not put it in place.

The employer considered that since teleworking had not been implemented in the company, implementing it would constitute a job creation to which he could not be forced.

The Court of Cassation rejects this argument and approves the Court of Appeal because it considers on the contrary that teleworking, considered then as a simple way of adapting a position, can be provided for by a simple amendment to the employment contract.

Thus, the employer having to take into account the recommendations formulated by the occupational physician in the context of his search for reclassification, he must necessarily set up teleworking if this is recommended by the occupational physician and that it is the only layout making the position suited to the employee's abilities.

However, it seems that the employer can always refuse the implementation of teleworking recommended by the occupational doctor if he invokes valid reasons. Indeed, article L. 4624-4 of the Labor Code leaves the possibility to the employer not to follow the proposals made by the occupational doctor by informing him, as well as the employee concerned, of the reasons for this. oppose it being followed up.


Cass. soc., March 29, 2023, n°21-15.472


Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

Mathilde Fruton-Létard élève avocate EFB Paris

CHHUM AVOCATS (Paris, Nantes, Lille)


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