Absence of a pre-recruitment medical examination: what are the risks for the employer?

All newly recruited employees are required to undergo a medical examination by an occupational physician. It is the employer's obligation to organise a pre-recruitment medical examination when recruiting an employee, a requirement that stems from the employer's duty to ensure the health and safety of all employees.

An employer's failure to arrange for an employee to attend a medical examination has consequences not only for the employee, whose fitness for the job is not verified, but also for the employer.

In a ruling handed down on 5 January 2023 , the Court of Appeal clarified the conditions under which the employer's liability is triggered.

An employee had been employed by his employer as a security guard, but had not undergone a medical examination on recruitment. Following a long-term incapacity for work, the social security medical examination referred the matter to the Joint Commission for the Reclassification of Workers Incapable of Performing their Last Position (hereinafter the "Joint Commission") for a ruling on the employee's ability to perform his last position.

The occupational physician declared the employee unfit to hold his last position. The Joint Committee then refused to redeploy the employee, either internally or externally, on the grounds that he had been in his last position for less than three years and did not hold a medical certificate stating that he was fit for work.

Employees who have been in their last position for less than three years are only eligible for redeployment if they are in possession of a certificate of fitness for the position issued by the relevant occupational physician at the time of recruitment to the last position.

1)   The pre-recruitment medical examination: an employer's obligation

There are no exceptions to the employer's obligation to carry out a medical examination on recruitment and to ensure that the employee is fit for work.

But what kind of obligation is this? Is it an obligation of result, or is it merely an obligation of means?

When we talk about an obligation of result, the person who has made the commitment must achieve the expected result; he has no other choice. In the case of an obligation of means, the contracting party must simply do everything possible to achieve the result, but if he fails to do so, he will not be held responsible.

This was one of the employee's main arguments, as he claimed that the employer had not fulfilled its obligation in this respect, an obligation which, according to him, was one of result.

In support of his arguments, the employee referred to a number of French cases in which it had been ruled that failure to comply with the obligation to have an employee medically examined by the occupational physician before recruitment or at the latest before expiry of the trial period, the preventive purpose of which is part of the employee's obligation to ensure safety of result, necessarily causes damage to the employee, which it is up to the judge, on receipt of a request to that effect, to make good.

The Luxembourg court has also ruled along these lines, ruling on 21 June 2011 that the employer's obligation to protect the health and safety of workers in the workplace is an obligation of result. To accept that the employer's obligation is merely one of means would be to empty the obligation of all meaning and effect.

However, this argument was strongly contested by the employer. In its view, the employer's obligation was merely an obligation of means.

However, the Court of Appeal pointed out that the employer's obligation to ensure the health and safety of all its employees was an obligation of result.

Since the employer had an obligation of result to organise a medical examination for each of his employees, what happens if he fails to meet this obligation?

In order to be exonerated from liability, the employer argued that this failure was not its fault but that of the State, since the multi-sector health service had not booked a sufficient number of appointments to enable it to submit all its new recruits to a medical examination. The State's fault therefore prevented it from properly fulfilling its obligation.

What are the penalties for employers?

The employee considered that he had not been able to benefit from redeployment by the Joint Committee on the grounds that he was not in possession of a certificate of fitness for the job issued by the relevant occupational physician at the time of recruitment.

As a result, he claimed to have suffered a loss of opportunity to be reclassified by the Joint Committee, due to the employer's fault.

However, for the Court of Appeal, the degree of probability that the employee would have obtained a reclassification decision if he had had a certificate of aptitude was not sufficient to establish a direct link between the employer's omission and the Joint Committee's refusal to reclassify the employee.

The employee therefore failed to establish that he would have had a real and serious chance of benefiting from a decision to reclassify him if the employer had made him undergo the pre-recruitment medical examination.

In conclusion, the employer certainly failed in its obligation to conduct a medical examination on hiring. However, according to the Court of Appeal, this was not sufficient to hold the employer liable, as the fault was not directly related to the harm suffered by the employee.

Even if the employer is not directly liable for any loss of opportunity for the employee to be reclassified, it is nonetheless the employer's responsibility, as the person responsible for health and safety in the workplace, to organise a pre-recruitment medical examination for each employee.