The prevention of occupational hazards and the 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 four notable court holdings in this domain from the first half of the year.

1. Employment safeguard plan: the existence of psychosocial risks justifies the suspension of a reorganization project by the judicial judge (CA Versailles, 14th chamber, January 18, 2018, n° 17/06280).

The division of competences between an administrative judge and a judicial judge in cases of psychosocial risks in the context of a reorganization project with a company employment safeguard plan has not yet been definitively settled.

A company initiated a reorganization plan to streamline IT management. Because the reorganization would eliminate 71 jobs, an employment safeguard plan (ESP) was negotiated with the unions and validated by the labor administration. It was not challenged before an administrative judge.

The company’s Health and Safety Committee asked a judicial judge to suspend several parts of the reorganization plan because it posed psychosocial risks (evidenced by several burn-outs, the exercise by 18 employees of their right of withdrawal, and letters from the labor inspector noting the increased workload created the new computer tools).

The Court of Appeal of Versailles accepted the Committee’s request and reaffirmed, as it had done in 2015, that a judicial judge is competent to suspend a reorganization, even in the presence of an ESP. According to the judges, no text authorizes the labor administration to examine the potential psychosocial risks when it inspects the validity of an ESP. The judges therefore concluded that only a judicial judge is competent to sanction an employer for failing to meet its safety obligations. As such, and in light of the alleged psychosocial risks, the Court of Appeal suspended the implementation of the reorganization plan throughout the company.

2. Safety obligation: the employer must take into account the specific site conditions and uses of equipment provided to the employees (Cass. Crim., March 6, 2018, n° 17-82.304).

Employers must provide employees with equipment that complies with regulation and is appropriate to the task at hand as well as the conditions of the specific job site.

In this case, an employee was driving a wheel loader on a muddy and sloping job site. The vehicle tipped to the side and shattered his skull. The employee died as a result of his injuries.

The wheel loader, although complying with regulations and duly inspected, was not suitable for the work being performed on the day of the accident. The configuration of the site and the ground conditions were likely to seriously compromise the loader’s stability. Furthermore, the loader had been used as a hoist despite not being equipped with the proper device for lifting loads.

On these grounds, an agent of the company, who had been delegated authority over security, was convicted of involuntary manslaughter and of providing workers with unsuitable equipment.

3. Tendentious medical report: the employer can request disciplinary sanctions against a doctor who has not personally ascertained the facts he alleges (CE, June 6, 2018, n° 405453).

A doctor wrote medical report in favor of an employee and suggesting that the employer had not complied with its obligation to protect the health of its employees. The referenced a “deleterious sequence of abusive practices” on the part of the employer. However, the doctor based his report on facts that he had not personally ascertained.

The employer lodged a complaint against the doctor, which led to a disciplinary sanction by the medical association. The doctor challenged this sanction, arguing that the employer was not entitled to make such a complaint to the medical association.

The Council of State rejected this argument and held that when an employer is directly and actually injured by a medical report, the employer may lodge a disciplinary complaint against the doctor who drafted the report. In this case, the employer was harmed when the employee used the medical report in litigation before the Labor Court.

The Council of State confirmed as well that doctors must not issue cursory or biased reports and must personally ascertain the facts they allege.

4. Prohibition of alcohol within the company: the prohibition must concern specific positions (CAA Nancy, March 6, 2018, n° 16NC01005).

The Labor Code only allows wine, beer, cider and perry in the workplace. It also permits companies to prohibit all consumption of all alcohol in the workplace if it is likely to affect the safety and the physical and mental health of workers. However, any such prohibition must be proportionate to the safety benefits it will create.

In this case, a company’s internal policies broadly and imprecisely prohibited the consumption of alcohol at all "safety, security or risk stations." During an inspection, the labor inspector requested the deletion of this clause. The employer challenged this request.

The Administrative Court of Appeal confirmed the decision of the labor inspector by clarifying that company policies cannot include a clause totally prohibiting the consumption of alcohol without specifically targeting the workstations covered by the prohibition.

The Court also explained that to completely ban alcohol, an employer must define the specific danger or risk posed by even the minimal consumption of alcohol by the covered employees.