During those trying times of pandemic, companies, and especially employers, will have to reinforce regulations in terms of safety and health of their employees so as to respect their obligations in view of safety. From that obligation, there is an implementation (I.) but also consequences to breaches of it (II.).
I. Application of employers’ obligations in view of safety
Obligation in view of safety is an obligation of means (A.) which necessarily engage the employer’s responsibility in case of breaches (B.).
A. A legal frame
Obligation in view of safety for which the employer is the debtor for his employees is framed by articles L.4121-1 and following of the Code du travail, the first stating that “the employer takes the necessary measures to ensure the safety and to protect the mental and physical health of workers”. That article also precises what those measures entail, by indicating that it is “preventive actions of professional risks (…), actions of formation and information, implementation of an organization and appropriate means”. We have here a general obligation in view of safety, with especially a obligation in view of prevention so as to protect employees’ health. Employer’s safety obligation has been of result for a long time but a revision of jurisprudence has been done by the Cour de cassation through its Chambre Sociale’s decision on November 25th, 2015 which has ruled in a formal ground of principle that : “ But given that is not disregarding the legal obligation forcing him to take all necessary measures to ensure the safety and protect the mental and physical of workers, the employer that justifies having taken all the measures stated in articles L.4121-1 et L.4121-2 of the Code du travail”. The safety obligation that compels the employer is thus an reinforced obligation of means, he can be found liable because there was an endangerment only if it is proven that the employer didn’t take all the necessary measures to protect the safety and the health of his employees. It will thus be up to the judges to answer that question and to determine if the employer has effectively taken all the measures he had to take. Employers have been reassured by the Minister of Labour on that question, especially during the pandemic, its administration having stated that the employer’s obligation was “to set up all the measures that have been defined by the authorities”. Those measures are explained in sectoral practical files and in a protocol of reopening established by the Minister, even though it is important to note that those documents don’t have legal value, they are only a basis upon which the employer rely to build his answer to the pandemic so as to fulfill his safety obligation.
B. The employer’s responsibility
The employer is civilly liable for damages caused by its fault or by his employee’s actions and his responsibility can be engaged on those two bases. Should he fail in his preventive obligation, as set by the Code du travail, then his civile responsibility could be engaged by the employee in order for them to obtain damages or even attribute the termination of their employment contract to that failure if it prevented the continuation of the contract. Any lacking from the employer in terms of their preventive obligation is categorized as wilful misconduct according to the Code de la sécurité sociale. The employer’s tortuous liability can also be engaged by applying article 1240 of the code civil, if a fault, a damage and causal link are proven. Finally, the criminal responsibility of the employer can also be engaged when he puts at risk the lives of their employees whether it is intentional or not. It must necessarily come from a fault done by the employer, whether it’s done on purpose as established by article 121-3 of the Code penal or as a negligence which would breach a particular safety obligation. With COVID-19, that responsibility of the employer in terms of security becomes even more important. In civil matter, it will be necessary to prove wilful misconduct by the employer, which means that the employer has not implemented the sanitary recommendations of the government within the company even though he was aware of the danger resulting from the absence of measures. In criminal matter, the Senate has just adopted a measure according to which the criminal responsibility of the employer can’t be engaged if one of the employees is infected by COVID, except if there is an intentional element.
The question of the waiver of responsibility faced with the importance of penalties is crucial.
II. Consequences of breach of the obligation
Even though the waiver of responsibility is possible for the employer (A.), numerous penalties exist (B.).
A. The waivers of responsibility
So as to be exonerated from their responsibility, the employers have multiple options. First, the safety obligation compelling them is a reinforced obligation of means, it allows the employers to not be held civilly responsible if they manage to prove that he has effectively taken all the necessary measures to protect the safety and the health of their employees. For example, in matter of moral harassment, an employer has been found not responsible par by the Cour de cassation because he had implemented all the measures he could so as to prevent all types of harassment. That judgement reinforce the importance of prevention in terms of implementing the safety obligation. However, the absence of fault on the employer’s part doesn’t equal an absence of responsibility; he is still responsible for his employees’ actions. The force majeure or an outsider’s action can theoretically be used as a mean to defend himself by the employer in order to exonerate himself but study of cases on the subject has shown that it is rarely used because it’s greatly inefficient. Means of defense that can be used by the employer are the followings: the employee’s abuse of office or the victim’s fault. For the first mean, three conditions must be met by the employer, there must be a link with the employee’s office, the absence of an authorization and an action unrelated to the employees’ missions. As for the second mean, the employer will be exonerated if the victim acted in bad faith or if the victim acted with deliberate negligence of which it was aware of. In criminal matter, one of the only means of exoneration that can specifically be applied to the employer in terms of safety obligation is the delegation of authority. That delegation entails the transfert of the criminal responsibility to the delegate and thus, an exoneration for the employer. However, that delegation is null if the employer has personally participated to missions done within the delegation or if the employer is a legal entity. The Chambre criminelle has ruled constantly in that matter, always accepting the employer’s criminal responsibility. That difference of handling between the physical person and the legal entity has been the object of a QPC to which the Cour de cassation has given an “enigmatic answer”.
B. The penalties
The first penalty, even though it is not legal, is the withdrawal right that can be used by employees if they judge that their employer doesn’t guarantee their safety and/or their health in their working environment. That first penalty has immediate monetary consequences, but it also has an influence the company’s reputation. In terms of legal matters, civil and criminal penalties can be awarded to the employer that does not respect his safety obligation as set by article L.4741-1 of the Code du travail. In terms of criminal sanction, the offense and the penalty that accompanies it are set by that article, the fine being 10 000 euros, fine which can be awarded as many times as there are employees concerned by their employer’s lacking. For non-intentional infractions, articles 223-1, 221-6 and 222-19 of the Code penal apply.
In terms of civil penalties, one of the consequences can be the termination of the employment contract, the employer having not uphold their obligations that are contained in that contract. Then, the employee can take his case to the Conseil des Prud’Hommes and thus obtain damages, a reparation. Moreover, if the employee takes his case to the social pole of the tribunal judiciaire, the employer will face a monetary reparation of the damage.