22 December 2014 - Post by:Susan Ekrami
For French employers, the obligation to protect the health and safety of their employees in the workplace must be taken seriously. It is an “obligation de résultat”, which means an obligation to “achieve a result”. The result to be achieved is the full protection of each employee’s health and safety – when the health or safety of employees is at risk or negatively affected the employer’s liability will be automatically triggered even though there may be no fault on the part of the employer. Prompt action and remedial measures are expected from the employer notwithstanding the fact that the situation may not be under its immediate control.
This duty results from the terms of Article L.4121-1 of the French Labour Code which stipulates that “the employer shall take the necessary measures to ensure and protect the employees’ safety and physical and mental health”.
A common situation in which the obligation is triggered is when an employee is harassed in the workplace by another colleague, without the knowledge of the employer, as was highlighted in a very recent case (Cass., Soc., 19 November 2014, n°13-17.729). The French Supreme Court held (not for the first time) that damages for a breach of health and safety duty (even in the case of an involuntary breach) are distinct from damages in respect of the harassment itself. The employee is entitled to two separate amounts:
- damages in respect of the harm which results from the employer’s failure to prevent the harassment, a failure which constitutes a breach of its health & safety duty; and
- damages for the harm caused by the harassment itself.
However, the award of damages for harassment is not automatic: the burden of proof lies upon the employee to demonstrate the injury, and on the employer to rebut the harassment allegations through the utilisation of compelling evidence.
A third type of damages could also be awarded if the employee can demonstrate that his or her termination is due to harassment. The employee may then be able to argue that his or her resignation constituted unfair termination and walk away with at least an additional six months’ salary in damages for unfair termination.
The employer cannot avoid being held liable, even if it has taken the relevant measures to resolve the situation. This does not, however, render pointless any attempt to take remedial action, because the employer’s response is taken into account by the courts when assessing the level of damages. The amount of damages in this particular case would have been higher if the employer had not reacted promptly with appropriate measures.
This strict approach is another reason for employers doing business in France to make sure that codes of conduct and appropriate training are not only implemented but operated effectively and kept under review.
Blog post by Claire Toumieux and Susan Ekrami, Allen & Overy LLP Paris