Legislation and Case Law in France / Second Half-Year 2019

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Prevention of occupational hazards and management of matters related to safety and the protection of health at work are major concerns for all those involved in labor law.

This newsletter reviews five notable court holdings in this domain from the second half of the year.

1. Employee suffers a heart attack on his arrival at work: it is an occupational accident (Cass. 2eme civ., 29 May 2019, n°18-16.183 F-D)

An employee felt unwell as he arrived at work one morning. He went directly to a room provided by the employer for staff to take breaks. A few minutes later, he had a heart attack. He died a week later.

For social security purposes, the heart attack was treated as an occupational accident. The employer contested this position, in particular because the employee had not started working when he became ill, and that symptoms had appeared before he arrived at his place of work.

The employer was unsuccessful. According to the judges, it did not matter that the employee had not yet reached his workstation and that the first symptoms appeared during the journey to work, as long as the accident occurred at the time and place of work, when the employee was under the authority of the employer. Any accident occurring at the time and place of work is presumed to be an occupational accident, unless the employer is able to prove a cause totally unrelated to the work.

It should be noted that it is possible to request an expert determination to settle such a dispute. However, the appropriateness of ordering this expert determination remains at the discretion of the judges.

2. Sexual harassment: impact of the victim's ambiguous attitude (Cass. soc., 25 Sept. 2019 n° 17-31.171 F-D)

A manager had been sending SMS text messages with inappropriate content to a colleague at work. He was the employee’s line manager. He sent the messages from his work phone repeatedly over a period of 2 years. When his employer found out about the text messages, he was dismissed for gross misconduct.

The employee contested his dismissal. The Court of Appeal ruled partially in his favour.

The court first noted that there was no serious pressure on the employee, nor had the manager created an intimidating, hostile or offensive environment for the employee. It also noted the ambiguous attitude of the employee, who, it found, had voluntarily participated in “a game of mutual seduction.” They concluded that, in these circumstances, the acts complained of could not be characterised as sexual harassment.

The court however confirmed the dismissal. It considered that the manager’s behaviour had caused him to lose all authority and credibility in the exercise of his managerial function, which was incompatible with his responsibilities. However, the judges did not agree that his conduct amounted to gross misconduct. They considered that the manager should have been given a notice period of termination. For the good understanding of all, in France, when an employee is dismissed for serious or gross misconduct, this employee loses the benefit of the notice period of dismissal and must immediately leave the company.

It should be noted that SMS text messages sent from a business telephone, which are not labelled “personal”, may be used as evidence by an employer.

3. Traffic offence committed in a rented car: if the driver is not identified, the manager must pay the fine (Cass. crim., 15 Oct. 2019, No. 18-86.644 FS-PBI)

An employer is required to report the identity of the driver of a company vehicle that has been used to commit a traffic offence.

Failing this, the legal representative of the employing company is liable for the offence of failing to report the driver.

But what about an offence committed with a vehicle rented by the company and whose driver cannot be identified?

Confronted with such a situation, the managing director of an employer company objected to being required to pay the fine on the grounds that the car’s registration certificate is not made out in the name of his company.

The court disagreed. Except in the case of force majeure or indications that make it possible to identify the real perpetrator of the offence, the manager is personally liable for the fines incurred for traffic offences committed with a professional vehicle, regardless of whether or not the registration certificate is made out in the name of his company, i.e. in particular with a rental vehicle.

4. Team building activity and employee safety: the manager is responsible (Cass. soc., 23 oct. 2019, n°18-14.260 F-D)

Employers are obliged to ensure the safety and protect the physical and mental health of their employees.

However, it is sometimes overlooked that employees must also take care, subject to their individual training and abilities of their own health and safety, as well as that of other persons affected by their acts or omissions at work.

An employee who fails to comply with this obligation may face sanctions. It may even be grounds for dismissal for serious misconduct if the health of a fellow employee is threatened.

A manager experienced this during a team building event.

In this activity, employees took turns breaking a glass bottle wrapped in a towel with a hammer, placing the broken glass on a piece of cloth on the floor and taking a few steps on the broken glass in bare feet. One of the participants then went out in tears and, on his return, was forced to explain to his colleagues that the reason for his refusal to participate was the fact that he was a carrier of a disease that could lead to risks of infection for the other participants.

The manager who had arranged the team building event was dismissed by his employer for serious misconduct.

The manager contested his dismissal. He alleged that he had complied with his employer's instructions by entrusting the organization of the event to a service provider referred by the company.

However, he was unsuccessful. The judges considered that the manager was at fault. He should have been vigilant and intervened to interrupt the activity in order to preserve the physical and psychological integrity of his employees.

5. Bullying and harassment: the employer must always act and carry out an investigation (Cass. soc., 27 Nov. 2019, n°18-10.551)

An employee reported to her employer that she had been the victim of bullying and harassment.

She was subsequently dismissed for professional incompetence.

The employee contested the dismissal, claiming that it was a retaliation for her complaint of bullying and harassment. She also claimed that her employer was at fault for not taking any action in relation to the bullying and harassment.

At trial, her claims were rejected. The trial judges decided that since no psychological harassment had been established, she could not accuse her employer of not having carried out an investigation.

The Supreme Court disagreed. An employer who fails to take any action and does not order an internal investigation into allegations of bullying and harassment is in breach of its health and safety obligations to the employee, even if the harassment is not established.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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