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Droit Social | L'obligation de sécurité de l'employeur à l'épreuve de la reprise d'activité

Multiple Judicial Courts have ruled in summary proceedings on the essential issue of protecting the health of employees working on-site (1) during the current health crisis.

Due to the conditions created by the Covid-19 epidemic, employers shall imperatively meet the obligations set out in the French Labour Code, which can be summarized in three main requirements:

– Take the necessary measures to ensure the safety and protect the physical and mental health of workers (Article L. 4121-1);

– Implement said measures, based on general prevention principles (Article L. 4121-2);

– Assess the risks for the health and safety of workers, given the nature of the establishment’s activities (Article L. 4121-3).

The combination of these three requirements echoes the decision which overturned previous case law, issued by the Cour de Cassation, on November 25, 2015, in the “Air France” decision, which provides :

But whereas, an employer who justifies having taken all the measures provided for in Articles L. 4121-1 and L. 4121-2 of the French Labour Code (2) does not disregard his legal obligation to take the necessary measures to ensure the safety as well as the physical and mental health of its workers.

Consequently, the employer’s safety obligation – considered for some time to be a performance obligation (3) – has become an enhanced best efforts obligation. It is in this logic of prevention that, recently, employers have been condemned by in summary proceedings, for:

First, not having properly assessed the risks associated with Covid-19, particularly the associated psychosocial risks, in updating the Document Unique d’Évaluation des Risques Professionnels (DUERP – Single Professional Risks Assessment Document) (4);

Second, not having involved and mobilised employee representatives and the occupational health services, given that an employer cannot make decisions on its own in a health crisis (5);

Third, not having provided practical, appropriate and relevant training to employees covering the necessary health precautions and the use of masks and gloves (6).

The courts, which issued decision in summary proceedings, adopted the same argument as the Court de Cassation in its “Snecma” decision (7), which stated that all operations shall be suspended where an employer fails to meet its safety obligation.

This is what the members of DIRECCTE (Labor inspector) were laying the groundwork for when they called on five of the six Amazon France Logistique warehouses to implement Covid-19 risk prevention measures as recommended by the government, and to observe general prevention principles by establishing protective and social distancing measures.

Having failed to sufficiently comply with these recommendations, were ordered to suspend part of their operations, based notably on the argument that the risk assessment methods employed were different, despite the fact that certain location shared the same Works Council.

In the end, subsequent to the order and the confirmatory decision issued by the Court of Appeal, the various trade unions reached an agreement with the management on the conditions under which operations could resume at these warehouses on 3 June 2020, on a volunteer basis.

Although it is also each worker’s responsibility – even more so in the event of a contagious disease – to take care of his or her own health and safety, as well as the health and safety of co-workers and colleagues affected by what he or she does or does not do at work (8), “there is an obvious fear of legal risk on the employers side (9)”, specifically the risk of incurring liability.

Particularly since Article 1 of Law No. 2020-546 of 11 May 2020, extending the national state of health emergency and supplementing its provisions, amended Article L. 3136-2 of the French Public Health Code, in the following terms:

Article 121-3 of the French Penal Code is applicable taking into account the competencies, power and resources at the perpetrator’s disposal during the crisis calling for the national state of health emergency, and the nature of its duties or roles, in particular as a local authority or employer.

Accordingly, an employer may be held criminally liable on the grounds of jeopardising the life of others, in the event of contamination or for having exposed employees to a risk of contamination, in which case, the judges will nevertheless have :

– On the one hand, establish direct causation with certainty, and prove that employees were exposed to an immediate risk;

– On the other, demonstrate the breach of the obligation of prudence or safety, which shall result from a rule of absolute and binding normative value, and above all, be motivated by particular unequivocal circumstances.

While it is true that the memorandums, fact sheets and national deconfinement protocol (10) published by the French Ministry of Labour were developed on the basis of precise knowledge, the fact remains that they are general guides which are not suited to the specific conditions of each company and are devoid of any binding value.

As a result, Article L. 3136-2 of the French Public Health Code as amended by Law No. 2020-546 of 11 May 2020 is sure to keep people talking going forward.

You do not trifle with the health of employees, especially during the Covid-19 crisis (11).

(1) See Lille Judicial Court, summary proceedings, 3 April 2020, No. 2020/00380; Paris Judicial Court, summary proceedings, 9 April 2020, No. 20/52223, La Poste; Lille Judicial Court, summary proceedings, 14 April 2020, No 20/00386, Carrefour Market.
(2) Cour de Cassation, Labour Division., 25 November 2015, “Air France”, No. 14-24444.
(3) Cour de Cassation, Labour Division, 28 February 2020, Asbestos ruling, No. 00-11.793.
(4) Nanterre Judicial Court, summary proceedings, 14 April 2020, No. 20/100503, Amazon upheld by Versailles Court of Appeal, 24 April 2020; Havre Judicial Court, summary proceedings, 7 May 2020, No. 20/00143, Workers’ Union CGT for employees of Renault Sandouville c/ SAS Renault; Lyon Judicial Court, summary proceedings, 11 May 2020, No. 20/00593: the companies should have incorporated the incessant organisational changes in the risk assessment (change in working hours, telework, etc.)
(5) Idem.
(6) Havre Judicial Court, summary proceedings, 7 May 2020, referred to above; Lyon Judicial Court, summary proceedings, 11 May 2020, referred to above: “Health risks and guidelines in terms of hygiene, as well as the necessary precautions to avoid exposure, the wearing and use of Personal Protective Equipment (PPE): training and informing employees on how to properly wear and remove masks and gloves in order to prevent secondary infection, on the level of protection that can be expected from individual PPE and on the maximum length of time such equipment can be effectively used.”
(7) Cour de Cassation, Labour Division, 5 March 2008, “Snecma” ruling, No. 06-45.888 .
(8) French Labour Code, Art. L. 4122-1.
(9) Based on the observations made by a Carsat auditor in daily contact with those organising the continuation or resumption of operations.
(10) Pierre Mériaux, Labour Inspector: “the deconfinement guide does not reference the French Labour Code (…)”
(11) Françoise Champeaux, “Amazon condamnée à restreindre son activité pour n’avoir pas suffisamment protégé la santé des salariés” (Amazon ordered to restrict operations for failing to adequately protect the health of its employees), No. 1905, 27 April 2020.

Photo by Tedward Quinn on Unsplash

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