By Matthieu Babin, Firm: Capstan Avocats
Recent French case law has tended to clarifiy the nature of an employer’s obligations in relation to occupational health. This article sets out some key points for employers.
In dealing with occupational health matters, employers are bound by a large number of obligations, including:
- risk assessment and prevention (drawing up the ‘single document’, which is a document that lists all the professional risks in a workplace, safety training, etc.);
- declaring accidents at work and financing their insurance coverage (the accident at work and occupational illness, or ‘AT-MP’, contribution);
- health monitoring (occupational medicine) and redeployment of employees who are not fit to work.
The employer’s ‘responsibility’ in the broad sense is historically at the origin of the emergence of social law, and it still constitutes its living heart today. It is revealing that, in current legislation, taking on responsibility for the cost of insurance covering accidents at work is the first element of the ‘social responsibility’ of platforms for self-employed workers (Labour Code, art. L. 7342-2 ; D. 7342-1 and -2).
Unfortunately, this corporate responsibility is too often confused with a sort of guilt. It is therefore worth recalling what should be obvious: just because an employer has obligations towards sick or injured employees or those who are unfit for work does not necessarily mean that the organisation or work should be implicated. An employer can be accountable without being guilty.
Below are two examples.
Incapacity for any employment position
An employee is declared unfit by the occupational physician, who states in his or her opinion that retaining the employee in any employment would be seriously prejudicial to his or her health. This expression is intended to exempt the employer from taking action to try to redeploy the employee, when it appears to the occupational physician that the employee can under no circumstances be redeployed (Labour Code, art. L.1226-2-1 and -12, R. 4624-42).
However, this expression is sometimes interpreted as indicating that the employee's incapacity was caused by his or her work, in other words, that the employee’s incapacity is of professional origin. This interpretation is, of course, totally erroneous: an incapacity to work with absolutely no possibility for redeployment can perfectly well have its origin in the employee's specific health problems. This type of statement is completely neutral as to the origin of the incapacity.
As a result:
- The fact that an occupational physician has declared an employee unfit for all positions an organisation does not indicate the existence of a link between the illness and the employee's work (Cass. civ. 2, 30 November 2017, n° 16-25902).
- The exemption from seeking redeployment recommended by the occupational physician does not imply that the inability to work has a work-related origin (Douai Court of Appeal, 30 November 2018, No. 18/01691).
Death at work
Another example where there is a risk of confusion is illustrated by recent decisions: an employee dies of a heart attack at work. Does this death constitute a workplace accident? A Court of Appeal held that it did not, with the following reasoning:
‘the administrative investigation had not identified any significant cause of professional stress; on the contrary, the atmosphere is described as very good, the victim being described as a man who is very professionally committed, very balanced, warm and smiling, not a stressed person; the meeting in which the victim was to participate, which had barely begun, presented no particular difficulty, especially since the results to be presented there were good and there was no reason to consider that the victim could be put, in any way, in difficulty; the victim's relations with his new superior, who arrived in August, were very constructive and the dialogue very open, the latter's management being more in line with the victim's philosophy.’
(CA Versailles, 12 April 2018, n°17/03786).
The Court of Cassation annulled this decision, recalling a principle: an accident that takes place at work is presumed to be an accident at work, unless it is established that the injury has a cause totally unrelated to work (Cass. civ. 2, 11 July 2019, n° 18-19.160).
The Court of Appeal’s reasoning revealed an absence of reference points: a work accident can be recognised to have occurred without establishing that working conditions had deteriorated, and therefore without assuming or implying any form of fault on the part of the employer. If there is a need to identify the employer's liability, that would take place in a different context, that of an action seeking to identify an ‘inexcusable fault’ on the part of the employer (Sec. Ct. soc., art. L. 452-1 et seq.).
There are two lessons to be drawn from this decision:
- Employers must be vigilant about their obligation to report accidents at work and aware they can formally express reservations about the professional nature of the accident, or the circumstances, if necessary.
- The employer can declare a work accident without that constituting an admission of fault or the existence of poor working conditions!