This newsletter reviews five recent significant judicial decisions on health, safety and working conditions:
- Did an employee's impending dismissal mean that his suicide attempt was work-related and therefore a work-related accident (Cass. civ., 2nd ch., June 1, 2023, n°21-17.804 D)
An employee was found guilty of serious misconduct by his employer. As he was a union representative, the labor inspector had to approve his dismissal. The day after obtaining this approval, the employee attempted to take his own life in the workplace, but outside working hours. He explained the reasons for his attempt in a farewell letter, which referred to alleged bullying and harassment in the workplace because of his trade union activities. A dispute ensued as to whether or not this suicide attempt was work-related.
The Social Security authorities and the Court of Appeal dismissed the classification of the incident as a work-related accident. They primarily highlighted that the employee's pre-existing depressive psychological condition, was not consistent with the notion of a sudden event (i.e., an accident). However, the decisive factor seemed to be the employee's clear intent to publicize his death widely. This deliberate and voluntary act negates the possibility of recognizing the incident as an accident.
The French Supreme Court decided otherwise, however, and overturned the appeal court's decision. Pointing out that any accident occurring not only in the course of work, but also as a result of work, qualifies as a work-related accident, it ruled that the lower courts had been wrong not to have drawn any conclusions from the fact that the suicide attempt had occurred at a time when dismissal was about to take place, which, in its view, indicated a link with work. The case will be retried.
- A work-related accident cannot be based solely on the employee's statements (CA Dijon, August 3, 2023, no. 21/00080)
24 hours after a meeting with her line manager, an employee provided her employer with a medical certificate stating that she was suffering from burn-out and reactive depression. Despite the company's doubts that there had been any altercation between the employee and her superior, the French health insurance office (Caisse primaire d'assurance maladie) ruled that the accident was work-related. The employer challenged this decision.
The employer argued that the health insurance fund's decision should be declared unenforceable given the absence of any witness to corroborate or refute the facts.
This argument was upheld by the Court of Appeal, which pointed out that the victim's allegations alone, no matter how honest or that they are made in good faith, are not sufficient to qualify an incident as awork-related accident in the absence of any direct witness to the facts.
- Employees absent due to illness or accident are entitled to paid leave, with no limit (Cass. soc., September 13, 2023, no. 22-17.340 to 22-17.342, 22-17.638 and 22-10.529, 22-11.106).
The French Labor Code does not comply with European Union law on paid vacations. EU law provides for an entitlement to paid leave of at least four weeks, without distinction as to the reason for absence, i.e. including sick leave. Until now, French employees were not entitled to paid leave during absences due to non-work-related illness. On the other hand, absences due to work-related accidents or illnesses were deemed equivalent to actual working time for the purpose of acquiring paid leave, but only up to a one-year limit.
These legal inconsistencies were well known. Until recently, however, they had no consequences. Indeed, case law did not allow an employee to invoke EU laws on paid leave to claim any from his or her employer. The French Court of Cassation, however, called for a change in French law, without success. Consequently, it addressed the issue itself, by way of authority, on the occasion of three cases.
The first case dealt with non-work related sick leave. Three employees claimed paid leave during their absences. Their employer objected, referring to French law, even though this was in breach of EU law.
In the second case, the employee's absence from work was the result of a work-related accident. An employee protested that he was no longer entitled to paid leave after an uninterrupted year's absence. Here again, the employer referred to French law, which was once again inconsistent with EU law.
In the third case, it was the statute of limitations that was at stake. An employee disputed the fact that the three-year limitation period for payment of vacation pay began to run at the end of the year in which the vacation entitlement arose, even though her employer had not actually enabled her to exercise her vacation entitlement, since she was absent.
In all these cases, the Cour de cassation upheld the employees' claims. The rules are now as follows:
- An employee acquires paid leave entitlements while absent from work due to illness or accident, whether or not such illness or accident is work-related;
- Paid leave is earned for the entire duration of the absence from work; and
- The statute of limitations for vacation pay can only begin to run if the employer has taken the necessary steps to enable the employee to effectively exercise his or her right to paid leave.
Case law is retroactive, so these court rulings can be used in disputes relating to periods prior to September 13, 2023.
Reactions to these rulings are multiplying in France. As we write this newsletter, the French government is planning to submit a law to Parliament to limit the impact of these decisions at the beginning of 2024.
- An employer cannot be released from its duty of safety by entrusting a third party with this work (Cass. civ., 2nd ch., November 16, 2023, no. 21-20740 FB)
Ten people died when two helicopters collided in flight while shooting a TV show. The accident was classified as work-related. The heir of one of the victims took legal action to have the employer, i.e., the film production company, found to be liable for gross negligence.
The employer's defense was that it had taken all necessary measures to ensure the safety of its employees during flight shootings, entrusting this duty to two qualified companies, one of which was headed by a highly specialized and experienced professional.
The defense was unsuccessful. Both the Court of Appeal and the French Supreme Court (Cour de Cassation) ruled that the company had committed gross negligence. The employer is bound by a safety obligation. It cannot be shifted to a third-party company. This is especially true when the employer was aware of the risk that directly and undoubtedly caused the accident, and when the service providers in charge of safety remained under the employer's supervision, direction and control.
- An employer must exercise extreme care when making a decision based on a notice of unfitness issued by an occupational physician (Cass. soc., September 13, 2023, no. 22-12.970)
An employee was reported unfit for work by an occupational physician. The illness was not work-related. The medical opinion stated that "any continuation of the employee's employment with this company would be seriously detrimental to his health". Without taking any further steps, the employer dismissed the employee for unfitness and impossibility of redeploying him. The employee challenged this dismissal.
The dismissal was found to be unfair. Judges ruled that the employer cannot avoid looking for redeployment, and refrain from consulting staff representatives on this matter, unless the medical opinion expressly states one of the two following: "keeping the employee in a job would be seriously detrimental to his or her health" or "the employee's state of health is an obstacle to any redeployment in any job". This was not the case here, where the medical opinion referred not to a general inability to work, but to the employee's detrimental continued employment with a specific company. This strict reading of the law calls for the utmost vigilance.
