This newsletter reviews four recent significant judicial decisions on health, safety and working conditions:

The duty to prevent harassment is distinct from, and should not be confused with, the prohibition of harassment itself (Cass. soc., 5 January 2022, n°20-14.927)

The struggle against all forms of aggression at work continues to occupy the courts. This case is illustrative of the trend that courts increasingly focus on the importance of preventing harassment.

An employee made a written report to his superiors detailing his unhappiness at work, that he did not understand why he was not advancing in his career, and that the president of the company had reacted violently and disproportionately towards him during a recent incident. The employer did not take any action.

The employee was dismissed and brought a complaint before the Employment Tribunal. He sought mainly payment of damages due to the employer’s failure to prevent harassment.

The Court of Appeals dismissed his claims, ruling that the employee was not a victim of harassment and that therefore he could not claim any damages for the employer’s supposed failure in its duty to prevent harassment.

The employee appealed to the French Supreme Court, arguing that the duty to prevent harassment was distinct from, and should not be confused with, the prohibition of harassment itself.

The French Supreme Court agreed with his reasoning. It held that his former employer had failed in its duty to prevent harassment by failing to act after having been informed by the employee of events that could constitute harassment, even though the facts were ultimately not enough to constitute a claim of harassment.

This decision reminds employers that they must react without delay when facts that may constitute harassment are brought to their attention, in particular by carrying out an internal investigation and putting preventative measures in place.
 

The Social and Economic Committee must be consulted before implementation of new rules that may affect working conditions, even if the rules are being imposed on the employer (Cass. soc., 21 April 2022, n°20-19.063)

Identifying which situations require consultation with the Social and Economic Committee (SEC) is a recurring challenge for employers. A recent case answered the question of what happens when the employer is only putting in place new rules that have been imposed upon it.

In this case, the employer had to implement new regulations about working conditions required by the authorities in its sector. These new regulations were imposed upon the employer, leaving no room for interpretation. Because of the restrictive character of the regulations and lack of flexibility in their implementation, the employer considered that consultation with the SEC would be pointless. It therefore put the regulations in place without consulting the SEC.

The SEC challenged the action before the Employment Tribunal, seeking to require the employer to consult with the SEC before implementing any new regulations affecting working conditions.

In its defense, the employer pointed out that it had made several suggestions to the employee to reduce her workload, which she refused each time and that the company doctor had recently declared her fit to work. The employer also demonstrated that no symptoms of depression, or signs that the employee was at risk of suicide, were apparent from her medical file. Lastly, the employer produced testimony from several employees stating that there was no work overload or pressure.

The Court of Appeals ruled in favor of the SEC and the employer appealed to the French Supreme Court, without success. According to the judges, the implementation of any rule affecting employment, working conditions, or professional training must be brought to the attention of the SEC, even if such rules are imposed upon the employer and do not require it to make a decision.

Employers should remember that consultation with the SEC is required not only on proposed measures but also on the effects of those measures. The SEC may give an opinion on the consequences of a proposed measure on matters such as working arrangements or employee training. This is a decision to keep in mind when an employer is required to implement legislative changes that affect business activities or where there is a change of control of the business, even if these are imposed upon the employer.
 

An employee who moved several hundred kilometers away can be terminated for health reasons (CA Versailles, 10 March 2022, n°20/02208)

Since the beginning of lockdown in the spring of 2020, numerous employees have relocated as remote work became more common. Some even decided to move several hundred kilometers away from the offices of their employer. This situation raises numerous questions, including whether such an employee may be terminated for health concerns if they are regularly required to come into the office.

In this case, an employee working at a company located in the Paris area relocated to Brittany. The employer requested that he return to the Paris area, referring to the employee’s contract, which located the employee’s working duties at the company’s office. It also noted the incompatibility of the employee’s new location with their mutual safety obligation. The employee refused to return to Paris, leading to his termination.

The employee brought a complaint before the Employment Tribunal. He argued that the employer was well aware of his relocation, which caused no disruption or cost to the company, and that he spent less than 17% of his time at the company’s offices, with the rest of his time spent travelling for work. He also noted his right to choose his place of residence under Article 8 of the European Convention on Human Rights.

The Versailles Court of Appeals dismissed his claims and held that the termination was justified. It considered that the employee had committed a fault in relocating so far away and in refusing to return to live near the company.

The Court of Appeals referred to the employer’s duty to take necessary measures to ensure the health and safety of its employees. The judges also noted that each employee is not only required to take care of their own health and safety, but also that of their coworkers. The judges concluded that in view of these duties, the employer was not unreasonable in requiring the employee to relocate back to the Paris area.
 

The crime of harassment requires that the employer be aware that its actions are affecting the working conditions of the employee (Cass. crim., 22 February 2022, n°21-82.266)

The crime of harassment is complicated in criminal law, requiring the presence of both a factual element and an intentional element. This means that, in order to meet the requirements of the criminal code, the actions in question must have adversely affected the working conditions of the employee and the perpetrator must have been aware that they were committing harassment.

An employee took her own life, leaving behind evidence accusing her employer of harassment and of having breached relevant health and safety regulations.

Her heirs and several labor unions brought claims arguing that the employee’s excessive workload had led to her depression and suicide.

In its defense, the employer pointed out that it had made several suggestions to reduce the employee’s workload, which she refused each time. It also claimed that the company doctor had recently declared her fit to work. The employer also demonstrated that no symptoms of depression or signs that the employee was at risk of suicide were apparent from her medical file. Lastly, the employer produced testimony from several employees stating that there was no work overload or pressure.

The crime of harassment was ultimately not proven, since the employer was unaware of any adverse effect on the employee’s working conditions.

On appeal, the French Supreme Court affirmed the lower ruling: the intentional element was not proven. If the employer knew that the employee was accepting additional work without complaint, it is proven that it had no knowledge of contributing to a deterioration in the employee’s working conditions.