Health, safety and working conditions in France / Second semester of 2020

Clarification of the applicable sanction for a breach of the redeployment procedure when employee’s unfitness is not work-related (Cass. soc. 30 Sept. 2020 n°19-11.974 FS-PBI)

An employer may dismiss an employee declared unfit to work by the company doctor if the employer can show either: (i) it is impossible for it to offer the employee another available position which meets the requirements of the company doctor; or (ii) the employee's refusal of the proposed position; or (iii) an exemption from redeployment issued by the company doctor.

The employer must in any event consult the social and economic committee (i.e., the employee representative body) to obtain its opinion on the suitability of the redeployment position or on the impossibility of redeploying the employee, before deciding on the dismissal. The employer is not required to follow a procedure laid down by law for this purpose, but must nevertheless act quickly. In particular, the employer must resume payment of the employee's remuneration if the employee is neither redeployed nor dismissed one month after the employer receives the medical notice of unfitness to work.

The sanction for failure to comply with the consultation procedure has long been known when the unfitness is work-related (i.e., resulting from an accident at work or an occupational disease). However, the sanction was not clear where the unfitness is non-work-related. Should it be concluded that there is no sanction?

The Supreme Court said no. Failure to consult employee representatives prior to dismissing an unfit employee has the following consequences. Either:

• If the unfitness is work-related the dismissal is null and void, , and the employee is entitled to be reinstated in his or her previous position or, failing that, must receive damages of not less than six months' salary; or
• If the unfitness is not work-related the dismissal is “without real and serious cause” (i.e., unfair), and the employee is entitled to the payment of damages in accordance with the legal compensation scale for unfair dismissals.

Inexcusable negligence: recent cases (Cass. 2e civ. 8 Oct. 2020 n° 18-25.021 FS-PBI ; Cass. 2e civ. 8 Oct. 2020 n° 18-26.677 FS-PBI)

Employers have a legal obligation to protect the health and safety of their employees. An employee who is the victim of an accident at work or an occupational disease benefits from a higher level of compensation in the event of an employer's “inexcusable negligence”: he or she receives full compensation for all of his or her losses and the employer bears the financial consequences. “Inexcusable negligence” is established if two conditions are met: (i) the employer was or should have been aware of the danger; and (ii) it did not take necessary measures to protect the employee from the danger.

There have been two recent examples of this type of negligence.

The first concerned a bus driver who was the victim of an assault. At the time his accident at work occurred, four assaults had been reported on his bus route in the previous 20 months. The Supreme Court found that the employer was or should have been aware of the risk of physical attack to which the drivers were exposed (Cass. 2nd civ. 8 Oct. 2020 No. 18-25.021 FS-PBI). In looking at the employer’s awareness of the danger in question, the Court will consider the assessment of the situation which the employer could reasonably have been expected to make in view of its professional experience and knowledge.

The second example concerned an employee suffering from silicosis. The Supreme Court found that there had been “inexcusable negligence” at the point when the employee contracted the occupational disease due to the ineffective protective measures put in place by the employer (Cass. 2e civ. 8 Oct. 2020 n° 18-26.677 FS-PBI). In this situation, where a danger has been identified by the employer, the judges must evaluate the measures taken to safeguard the health and safety of employees and the steps that have been taken to correct any risks identified.

An employee may claim damages for injury caused by the employer’s behavior surrounding his or her dismissal, even when the dismissal is justified due to the employee’s serious misconduct (Cass. soc. 16 Dec. 2020 n° 18‑23.966 F-PBI)

An employee was dismissed for serious misconduct. His employer shared information with third parties about the reasons for his dismissal. The employee became aware of this and decided not only to challenge his dismissal but also to seek damages for the moral damage related to the circumstances surrounding the termination of his employment contract.

The court of appeal ruled against him, ruling that the dismissal was based on serious misconduct and that his claim for damages for vexatious dismissal should be rejected. 

The Supreme Court reversed this decision, ruling that the court of appeal had been too hasty in its analysis. Even when a dismissal is justified by an employee's serious misconduct, the manner of the dismissal or other related behavior of the employer may cause damage to the employee for which he or she is entitled to claim compensation. This claim for damages due to the employer's wrongful behavior in the context of the termination of the employment contract is independent of the grounds for the termination of the employment contract.