Under French law, the employer must take all necessary measures to protect the “security” as well as physical and mental health of its employees.
This includes the obligation to assess the psychological and social risks linked to the activities of the business. In cases of work-related illness recognised as such by the Social Security Administration employees can claim damages if they are able to demonstrate “inexcusable fault” on the part of the employer leading to a mental or physical injury. This will be the case if the judges deem that the employer was or should have been conscious of the danger and did not take the necessary actions to prevent it.
In a recent case, the employee had a heart attack. The Social Security Administration agreed that it was work-related and he then brought a claim against his employer due to what he said was its inexcusable fault. The Supreme Court upheld this claim, accepting (notably due to several testimonials from other employees – clearly not a happy workplace!) that the increased workload over recent years was clear and that the employer’s practice on cost-cutting grounds was to overload employees with work and effectively unattainable objectives. This had generated considerable stress for the employee in question.
The employer claimed that the victim had never complained of an excessive workload and that it had no knowledge of any heart condition suggesting that special care should be taken of him. On the contrary, he had received a clean bill of health from the Labour Administration Doctor during each annual visit. The employer therefore took the line that it could not reasonably have been aware of any particular danger to the employee.
The Supreme Court specified that the security obligation for the employer is broad and includes consideration of the possibility of an adverse reaction to work pressure even where there were no prior indicators that any individual was at particular risk. As for the defence put forward by the employer, the Court concluded that the hierarchical position of the employee made it impossible for him to complain about his workload. As the employer had not actively assessed the consequences of its cost reduction policy on the health of its employees, it was guilty of inexcusable fault.
In 2010 the Supreme Court reached the same conclusion in a case where an employee had been taken seriously ill after an appraisal meeting. In that case the employee had written letters to her employer alerting it of her very difficult work conditions and hence vulnerability to injury. Here the employer did not have the same degree of prior awareness of the risk, but could not rely on that lack of awareness because it was due to its own fault in not carrying out a risk assessment.
French employers should be aware of this risk and arrange with their employees and personnel representatives (e.g. the Works Council and the Hygiene & Safety Committee) suitable discussions and measures to manage stress at work, especially where something changes e.g. work volumes, new processes, etc.