Preventing occupational hazards and managing matters related to the safety and protection of health at work are major concerns for all those involved in HR issues.

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

Sick leave of more than 30 days without a medical check-up: the contract remains suspended and the employer is not required to restart salary payments (Cass. soc., 19 Dec. 2018, No. 17-24.007)

An employee did not return to work after more than 30 days of sick leave, with no justification of a new sick leave. His employer sent him a formal notice to return to work; when the employee still did not return, the employer stopped paying the employee’s salary. The employee was then dismissed. He brought the matter to the labor court.

The employee requested payment of his salary for the period he had not been paid after formal notice was sent to him requiring him to return to work. He claimed that his employer was required to organize a medical check-up since the period of sick leave had lasted more than 30 days. Alternatively, he argued that he had not committed any fault by not coming to work so the employer should have continued to pay his salary.

The labor court accepted this argument, which was subsequently confirmed at appeal level. The employer appealed to the French Supreme Court.

The Social Chamber agreed with the employer. The Court found that in the absence of a medical check-up, which may also be requested by the employee, the employment contract remains suspended and the employer is not required to restart payment of the salary. However, if the employee returns to work or informs his employer that he is available for a medical check-up, he must be paid.

Harassment and bullying: dismissal based on absence due to harassment is null and void (Cass. soc., 30 Jan. 2019, No. 17-31.473)

An employee was dismissed following a prolonged absence. She had taken a number of periods of leave, first due to a workplace accident and then illness. Her absence was causing disruption to the business and as a result the company had hired a permanent replacement for the employee. The employee asked the labor court for a declaration that her dismissal was void, citing workplace harassment and bullying (called “moral harassment” in France) which, in her opinion, was the cause of her absences.

The judges agreed with her. Where an employee’s prolonged absence is caused by workplace bullying or harassment, the employer may not rely on the disruption that this absence causes to the functioning of the company. In this case, the employee had alerted her line manager to the actions which she considered amounted to bullying and harassment, and her employer was unable to demonstrate that it had taken the necessary measures required to put an end to the harassment.

Would the result have been the same had the employee not reported being the victim of bullying and harassment to her employer? In this scenario, the employer would not have been able to take the necessary precautionary measures. Recent case law has not been consistent as to whether the employee must report bullying with the use of the exact words “moral harassment” before the employer is required to take action. In view of this, future decisions should be followed carefully.

Dismissal of entire workforce without consultation of the Health, Safety and Working Conditions Committee (CHSCT): the social plan procedure is valid if working conditions were not impacted before the redundancies (CE, 13 Feb. 2019, No. 404556)

A company was placed in judicial liquidation and all employees were dismissed. Following an information and consultation procedure with the employee representative committee (EC), the job-saving plan (PSE) produced as a result of the procedure was approved by the DIRECCTE (the labor administration).

The affected employees brought the matter to the administrative court, seeking an annulment of the decision to dismiss all the employees on the basis that the Health, Safety and Working Conditions Committee (CHSCT) had not been consulted. In their opinion, this procedural irregularity meant that the PSE could not be approved.

The administrative court unanimously rejected this claim. If, in the absence of a takeover offer, an entire workforce is to be dismissed, and, in the meantime prior to the termination of their employment, the health, safety and working conditions of employees are not affected, the CHSCT does not have to be consulted.

Involuntary homicide on a construction site: the victim’s fault must be the only cause of the accident for the employer to exonerate itself from responsibility (Cass. crim., 7 May 2019, No. 18-80.418)

An employee performing works at height fell to his death on a construction site. The subsequent investigation uncovered a number of issues. It revealed that the ledge on which the victim had been standing did not have a guardrail, which had been moved by workers from another company involved in the works. It also established that the safety coordinator had not attended sufficient site meetings, and had not analyzed all the potential risks or carried out all the required safety visits. However, the investigation also showed that on the day of the accident, the works co-ordinator and project manager had ordered the victim to leave the site because of the danger. Nevertheless the victim, having assessed the situation himself, had returned to work. Investigations also showed that safety harnesses were available, but the victim did not use one.

The security coordinator and the company’s manager were charged with involuntary homicide in the workplace. They were accused of breaching their health and safety obligations. The investigating judge nevertheless issued an order dismissing the case. The plaintiffs appealed against this decision. The investigating chamber confirmed the decision of the first judge, because the victim had not complied with the instructions given to him, and had not used the safety equipment at his disposal. The plaintiffs then appealed to the French Supreme Court.

The French Supreme Court overturned the judgment of the investigating chamber. The Court found that the fact that the chief executive of the company was not present at the time of the accident did not exempt him from criminal liability. Above all, the Court found that the employer can only exonerate itself from criminal liability if the victim is solely and exclusively responsible for the accident.

Termination agreement for an employee declared unfit for her position following an accident at work is valid (Cass. soc., 9 May 2019, No. 17-28.767)

An employee was the victim of a workplace accident. She was declared unfit for her position after two examinations by the occupational doctor. A few days after receiving notice that she was not fit to return to her position, the employer and the employee signed a termination agreement, which was approved by the administrative authority.

The employee then attempted to question the termination agreement, arguing that it could not validly be concluded by an employee declared unfit for her position following a work accident.

The French Supreme Court disagreed with her, and confirmed that such a termination agreement is lawful, except in cases of fraud or where the employee’s consent is invalid.