France: Employer’s Inexcusable Fault – Employee Warns of Death Threats is Subsequently Attacked
In case of an accident at work (or an occupational disease), the employer commits an inexcusable fault if it was, or should have been, aware of the danger to which the worker was subjected and if it did not take the necessary measures to protect him. The benefit of the inexcusable fault is automatic; the employee is protected from the time he/she has alerted the employer to the existence of a risk, which later transpired.
This was the case of an employee who, after having forwarded an anonymous death-threat letter to his employer, was the victim of an assault. He informed his employer and the secretary of the health and safety committee. Four days later, he was the victim of a very violent attack at his workplace.
The primary health insurance fund covered the incident under occupational-injury legislation.
The employee asked the court to recognise his employer’s inexcusable fault. The Court of Appeal rejected his request. The judges noted that the company’s secretary found an anonymous letter in the mailbox, intended for the victim. It mentioned “get out or die”. That same day, the employee transmitted it by e-mail to his employer, writing: “At this stage where only you and I know about it, I recommend keeping quiet in order to lure the wolf out of the woods”. According to the appellate judges, this transmission did not characterise an alert given to the employer, concerning an exposure of his person to a risk of physical aggression.
The Court of Appeal deduced that the conditions set out in article L.4131-4 of the Labour Code had not been met. Consequently, it is up to the victim to prove inexcusable fault, by establishing that his accident is linked to a fault committed by his employer, in the context of his safety obligation.
The Supreme Court overturned the decision of the Court of Appeal. It recalled that article L.4131-4 of the French Labour Code provides that the benefit of the employer’s inexcusable fault is automatic for an employee who is the victim of an occupational accident or disease when the employee, or a staff representative on the health, safety and working conditions committee, had previously informed the employer of the risk that had materialised.
The Supreme Court highlighted the fact that the appellate judges specifically pointed out that the victim had forwarded a threatening letter, received in the context of strong internal tensions within the company, to the employer; the Supreme Court considers this as sufficient proof that the employee had therefore, informed the employer of the risk of aggression to which he was exposed. The high court judges concluded that the Court of Appeal, which did not draw the legal consequences from its own findings, violated article L.4131-4 of the Labour Code.
Key Action Points for Human Resources and In-house Counsel
This case reinforces the notion that employers must react promptly and appropriately when they are informed, or otherwise learn, of any potential health and safety risks concerning their staff.