France: Employers who do not discuss workload and work/life balance issues during annual employee performance reviews can be considered in breach of their duty of care
Employers have a duty of care toward their employees with regards their physical and/or mental health. This include taking necessary measures to avoid or reduce health and safety risks which could result from excessive workloads.
In this recent case, the French Supreme Court stated that such measures included informing and training employees on these health and safety risks as well implementing annual employee performance review meetings during which workload and work/life balance issues could be discussed.
By not doing so, the employer, who had been alerted on numerous occasions by the employee in question of his excessive workload and ensuing mental stress, was considered to have breached his duty of care.
Should a work-related accident or illness be deemed to be caused in part or in whole by the employer’s breach of their duty of care, defined under French law as an “inexcusable fault” (faute inexcusable), this can result in claims for constructive dismissal and damages by the victims, increase in social security contributions and criminal fines and, in the most serious cases, imprisonment. An “inexcusable fault” is automatically deemed to exist when an employee or staff representative has alerted the employer of the existence of this risk.
Key Action Points for Human Resources and In-house Counsel
- Implement annual performance reviews during which workload and work/life balance issues are discussed.
- Document the fact that such issues were discussed and, if any issues are raised by employees, the company’s response and measures taken.