No employee may be subject to discrimination because of his health, particularly with regard to contract renewal.
Wednesday, February 23, 2011
Buying Shoestring Liquorice
: non-renewal of contract and discrimination on grounds of health
No employee may be subject to discrimination because of his health, particularly with regard to contract renewal.
The state of health is prohibited grounds of discrimination included in the list in Article L. 1231-1 of the Labour Code. The law does provide that "differences of treatment based on the unsuitability recognized by the medical work because of health or disability does not constitute discrimination when objective, necessary and proportionate ". (Article L. 1133-3 c. trav.). The difference in treatment is permissible only if the incapacity has been proven by the occupational physician. However, it is well known that the Board is very committed to social forms in which the finding of unfitness must intervene and particularly to the rule that it can be regularly found at the end of a double review Medical (article R. 4624-31 c. trav.). Requirements whose jurisprudence shown here have impact on the applicability of Article L. 1133-3 of the Labour Code. Thus constitutes discrimination because of health status dismissal pronounced physically unfit while the examination by the occupational physician as part of the annual survey of employees could be considered the first of two exams required by Section A. 4624-31 Labour Code (Soc. May 16, 2000, Bull. Civ. V, No. 182; RJS 2000. 554, No. 789, Dr. soc. 2000. 781, note Savatier). It has likewise been held that the dismissal in case of physical incapacity not reclassifying pronounced in the absence of double examination under Article by R. 241-5-1 is invalid pursuant to Article L. 1132-1 of the Labour Code (Soc. Feb. 16. 1999, Bull. Civ. V, No. 76, Dr. soc. 1999. 528, obs. Savatier, 20 September 2006, RJS 2006. 868, No. 1169 ). No employee may be subject to discrimination because of his health, particularly with regard to contract renewal.
This decision confirms the principle solution s'inférait of these various decisions and can not be expressed more clearly. Section L. 1133-3 of the Labour Code "applies only in cases of unfitness found by the occupational physician in accordance with the provisions of Article R. 4624-31 Labour Code. " The condition was failing in this case. The inability of the employee had not been seen by the doctor work after a medical examination twice. The latter was issued after the visit of recovery, review of fitness with reservations which amounts to a review of competency and had confirmed this conclusion during a medical examination carried out five months later his initiative.
Confined originally only to sanctions and dismissal, the requirement of non-discrimination to encompass all aspects of the employment relationship, including the assumption of non-renewal of employment contract (art. L. 1132-1 c. trav.). This decision is the first application of the requirement of non-discrimination in this situation (V. for rejection, Soc. June 20, 2007, No. 05-45102, Dalloz jurisprudence), which explains why it has the honor of being intended to be included in the annual report. It was a case of an employee under contract adults bridge, permanent contracts or fixed term found under Item 1, Article L. 1242-3 within a period of three years renewable once (Art. 5134-103 L. c. trav.). The employer had renewed their term of all contracts of fixed-term work concluded under this provision except that the employee concerned, twenty-seven contracts renewed twenty-eight contracts. Undoubtedly, the comparison implied in this case the existence of discrimination in respect of the health of salarié.source Dalloz L. Perrin Editions Dalloz Dalloz news © 2011
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