In its decision of November 25, 2015, the French Supreme Court (“Cour de Cassation”) has nuanced its jurisprudence on the no-fault, absolute safety obligation of the employer. The latter may now be exempted from liability by demonstrating having taken all "necessary measures" to avoid the damage suffered by the employee.
In this case, an Air France purser on stopover in New York witnessed the September 11, 2001 attacks on the World Trade Center from his hotel room. Five years later, after having returned to work without manifesting any suffering, the employee developed a major anxiety-depressive syndrome leading to a medical leave until his dismissal in 2011. In the meantime, the employee claimed damages before the French Labor Court, arguing that his employer was strictly liable for his condition as it had allegedly not provided sufficient psychological support after the attacks.
His request was denied by the Court of Appeal as well as the Supreme Court which approved the appeal judges’ finding of " no employer's breach of its absolute security obligation", observing that the latter had taken all necessary and appropriate measures to ensure the physical and psychological safety of the employee. Following the attacks, the airline company had notably mobilized medical staff day and night to take care of the employee and his team and guided them to psychiatric consultations. The Supreme Court also notes that the employee had been declared capable to work by four occupational medicine doctors between 2002 and 2005 and had worked "without difficulties" until April 2006.
In its decision, the Supreme Court held that: "The employer which proves having taken all the measures provided for Article L. 4121-1 and L. 4121-2 of the Labor Code” is not in breach of the legal obligation requiring to take necessary measures to ensure the safety and protect the physical and mental health of workers.
By its decision, the French Supreme Court seems to encroach upon the concept which the Court itself created and extended to the extreme since the "asbestos affairs1” of 2002: the no-fault absolute safety obligation of the employer, the only exemption from which is, in principle, force majeure. This concept, which has been widely applied to all aspects of employment safety issues since then, was created in order to maximize the employer's statutory duty of security as set forth in Articles L. 4121-1 and L. 4121-2 of the French Labor Code (former Article L. 230-2). On this basis, the employer has almost automatically been held liable for cases of passive smoking2, degradation of working conditions after implementation of a new organization3, and in terms of prevention of harassment, even if the harassment was not committed by the employer itself4 or where the latter proved to have taken measures to stop it5.
The decision of November 25, 2015 marks a turning point because it opens an exit door to the employer who demonstrates having satisfied its general safety obligation by implementing all necessary measures to prevent the risk, notwithstanding its realization.
The Supreme Court’s decision is capable of two differing interpretations: either the French Supreme Court intends to relax its jurisprudence on the employer’s no-fault safety obligation, or the Court considers that the employer’s implementation of all "necessary measures" to avoid the damage exonerates it from its security obligation (in which case, the Supreme Court would appear to be creating a sui generis no-fault obligation which nuances the common law recognition of only force majeure as an exonerating factor (Article 1148 of the French Civil Code)).
By publishing its decision as widely as possible (PBRI), the French Supreme Court has marked its determination to make known its willingness to relax the strict position it adopted more than 10 years ago. The forthcoming annual report of the Court of Cassation for 2015 – likely to be published in January 2016 – should provide interesting details about the future position of the Court in this regard.