The articulation of a protected employee’s refusal to modify his employment contract under a Collective Performance Agreement and unfitness for work is clarified

CE, April 4, 2025, n°471490 

In this case, the Labour Inspectorate authorised the dismissal of a protected employee who had refused a change to his employment contract resulting from a Collective Performance Agreement (CPA).

The employee took the matter to the administrative court to have the decision to authorise the dismissal overturned.

He argued that he had legitimately refused the change to his employment contract resulting from the CPA because his state of health, as certified by the occupational physician’s opinion, was incompatible with the new work organization.

The Administrative Court of Appeal dismissed his claims, and was approved by the Conseil d’État, which stated:

• That the acceptance by a protected employee of the modification of his employment contract resulting from the application of an APC “does not release the employer from his obligation to take necessary measures to ensure the safety and protect the physical and mental health of that employee”,
• If a protected employee refuses to accept the change to his employment contract resulting from the application of an APC,”his employer may, for this reason alone, initiate dismissal proceedings”.

However, the labour inspectorate may not legally grant this request if, at the date of the decision, the employee has been declared unfit for work by the occupational physician. In this case, thedismissal can have no other basis than unfitness.

In this case, the Conseil d’Etat noted that the employee “had not been the subject of a notice of unfitness from the occupational physician” (but only of a reorganization of his workingtime), so that the Court righfully ruled that ‘”the refusal by the person concerned of the modification of his employment contract resulting from the APC constituted, a real and serious cause of dismissal”.