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

• Failure to provide safety training does not constitute a deliberate breach of a specific duty of care or safety amounting to a criminal offence (Cass. crim., 21 June 2022, n°21-85.691 FS-B)

A manifestly deliberate breach of specific health and safety duties imposed by law or regulation which causes others to be totally incapacitated from working for up to three months is a criminal offence.

Does such an offence arise in circumstances where an employer disregarded general obligations imposed on it by the Labor Code to organize and periodically provide information and training to workers on work related risks and the measures required to remedy them?

This is the question that the French Supreme Court had to answer in the context of a dispute following a complaint filed by an employee who was the victim of an occupational accident on a fishing vessel.

The Court of Appeal found that the lack of safety training for the employee was a breach of a specific obligation on the part of the employer because the victim was exposed to a dangerous situation, and this amounted to a criminal offence.

The Criminal Chamber of the Supreme Court disagreed, as the Labor Code only contains general obligations of care and safety, and not specific obligations, and it is not possible for a criminal offence to arise where the employer disregards these general obligations.  

• An employer who condones the managerial methods of an employee cannot dismiss the employee for serious misconduct due to bullying or harassment (Cass. soc., 12 July 2022, n°20-22.857 F-D)

Any employee who is guilty of bullying or harassment is liable to disciplinary action.  Where an employee bullies or harasses one of his colleagues he commits a fault, and the employer is under a duty to the victim, to put an end to the bullying and harassment by using its power to discipline the perpetrator.

However, the employer’s response to the bullying or harassment depends on the degree of seriousness of such misconduct.  Does bullying or harassment always justify dismissal? Should the employer take into account extenuating circumstances which mitigate the seriousness of the misconduct?

The French Supreme Court answered these questions in a decision dated July 12, 2022.  

In this case, an employee had been dismissed for serious misconduct because the methods he used to manage another employee amounted to bullying and harassment.  However, the trial judges noted that the manager’s superiors knew about his management methods, they had never condemned them, and had in fact encouraged them on the grounds of the perceived poor professional performance of the employee who was the victim.  Since the bullying and harassment was caused by management methods which were shared and encouraged by the manager’s superiors, the Supreme Court considered that this behavior could not be entirely imputed to the dismissed employee and did not constitute a real and serious cause for dismissal, and even less a serious fault making it impossible for the employee to remain in the company.

• An employer is not obliged to set up a register of reports of risks to public health or the environment in each of the company's establishments (Cass. soc., 28 September 2022, n°21-16.993 F-B)

Employees or staff representatives who make reports to the employer’s Social and Economic Council (SEC) concerning serious risks to public health or the environment are recorded in a special register.  The employer is responsible for keeping the register and it must be available to staff representatives of the SEC.

The question arose as to where this register should be kept in companies with several sites.

In this case, a representative of the SEC and a trade union took legal action to request that their company, which had several stores, be ordered to set up the register of reports of health and environmental risks in each establishment of the company.  

After having noted that the company had only one SEC and that a special register was kept at its head office and was available to SEC staff representatives as required, the Supreme Court found that the company had complied with its obligations.

The decision is logical since the aim is that the register is available to the staff representatives of the SEC.  But the decision may have been different if each store had constituted a separate establishment each with its own SEC.

• An employer who asked an employee to work while she was on sick leave was in breach of its health and safety obligations (Cass. soc., 6 July 2022, n°21-11.751)

An employer's health and safety obligations to its employees are engaged in a wide variety of cases. This one in particular has attracted attention.  

An assistant employee of an audit and consulting firm was placed on sick leave for several months. When she was about to return to work on a part-time basis from home, her employer suggested that she work on two cases, which she did.  

She then claimed compensation for the employer's breach of its health and safety duties. Her claim was rejected by the trial judges.  

However, the Supreme Court upheld her appeal, reaffirmed that an employer does not have the right to make an employee work during sick leave, and concluded that an employer which asks an employee to work during sick leave incurs civil liability for breach of its health and safety obligations.  This applies even if the work is presented as a proposal from the employer which is accepted by the employee.

However, prompt requests for information made by the employer to the employee during sick leave in order to ensure the continued good functioning of the company are not considered to be work and are therefore permitted.