Question 5086 — businesses

Summary

Ms. Anne Le Hénanff draws the attention of the Minister Delegate to the Minister of the Economy, Finance and Industrial and Digital Sovereignty, responsible for commerce, crafts, small and medium-sized enterprises and the social and solidarity economy, to the consequences of the cost of dismissal for incapacity for VSEs/SMEs. Dismissal for incapacity is a special method of dismissal occurring after notice occupational medicine deeming the employee unfit to continue his professional activity. This opinion may be given after an occupational illness, a work accident, or following any physical or mental condition, partial or total, making it impossible for the employee to continue the employment contract. In other words, this termination of the employment contract occurs for employees who can no longer carry out their missions well and whose reclassification is impossible within the company. This method of dismissal does not result from any fault of the employee, it gives the right to special dismissal compensation. The physical incapacity of the employee presents this other specificity of being the only hypothesis where the employer loses all power of initiative. In the presence of uncontested incapacity, the employer has little choice: reclassify or dismiss. And to avoid dismissal, reclassification must still be possible according to the occupational doctor, according to the company's possibilities and must be accepted by the employee. Failing this, the employer is de facto obliged to dismiss, since since 1992, if at the end of the one month period following notification of the notice of incapacity, the employer has not reclassified or dismissed the employee, he must resume payment of the previous salary. (articles L.1226-4 and 1226-11). Certainly, the latest reforms and in particular the laws of August 17, 2015 and August 8, 2016 have reduced the employer's obligation to seek reclassification since the employer is exempt from this according to articles L.1226-2-1 and L.1226-12, if the occupational physician has included in the opinion the express mention that "any retention of the employee in a job would be seriously detrimental to his health or that the state of health of the employee obstructs any reclassification in a job. Without calling into question the protection of the employee, the MP wishes to alert the Government to the breakdown in equality between a large company, which will be more able to offer reclassification or absorb the cost of a dismissal and a VSE or SME. Indeed, in the case of VSE/SMEs, craftsmen, traders, the cost of dismissal for incapacity, moreover when the employee has been in the company for many years, can have serious consequences, particularly in the current period. If certain collective agreements work to put solutions in place in certain corporations, it is also the role of the Government and the legislator to take up this subject and act to best support small businesses, without penalizing the affected employee. incapacity. Also, she asks him what the Government's position is on this breakdown in equality between large companies and VSEs/SMEs facing dismissal for incapacity and what, at a minimum, support measures it intends to implement.

Machine translation from French. The official text remains authoritative.

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