Lawyer in employee security: Me Zakine, Doctor of Law

Duty of care and damages: occupational health and safety is meaningful and responsible

IS THE EMPLOYER RESPONSIBLE FOR THE HEALTH AND SAFETY OF HIS EMPLOYEES IN THE WORKPLACE?

❖ Company X, a user of chemicals and machinery, is concerned about the health and safety of its employees.

How should it proceed to implement its security obligation in the most effective way?
Company X should be aware that this obligation covers working conditions, working time and labour relations.
To this end, it is incumbent on him to implement protective measures upstream, in particular individual and collective equipment when employees handle dangerous products or when the employee is required to work in noise or perform repetitive movements.

❖ What about employment relations? Does the safety obligation also apply to the prevention of moral or sexual harassment in the workplace?

Mrs D., an employee of company X for 12 years, had been bullied for some time by her superior and even by the switchboard operator who had been with the company for a year.
Company X must take the necessary measures to put an end to these acts against Mrs D.
If it fails to do so, company X may be held liable for failing to take the necessary measures to protect its employees. prevention of this occupational risk under its safety obligation.
Harassment can be carried out between colleagues at any level of the hierarchy.

❖ Can workplace violence lead to employer liability?

Mrs D... was finally violated by the switchboard operator who did not accept orders from her colleague?
Company X wonders whether only the operator will be held responsible for this act of violence. It fears that it will be held liable for its own actions.

When an employee is the victim of an attack by another colleague on his workplace, the employer's liability may be incurred.
The victim may even request that the dismissal be reclassified as a dismissal without real and serious cause.

➣ The consequences of violence in the workplace can be particularly damaging to society.

The employer is considered to have failed in his obligation of result when the employee has been the victim of violence by another colleague, even if he had taken the necessary measures to stop the behaviour.

The employee will not even have to show that the employer was aware of a conflict between the assaulted employee and another colleague but did nothing to stop it. It is sufficient that the facts occurred for the employer to be found liable.

Mrs D... could therefore engage the responsibility of her employer and even initiate an action before the Conseil de Prud'hommes with a view to requalifying her termination of employment as a dismissal without real and serious cause.

In short, great care should be taken when relations between colleagues tend to deteriorate, as an act of violence against an employee necessarily entails the employer's responsibility.
The employer must act upstream to prevent violence, moral harassment and psychosocial risks in order to preserve both the physical and mental health of its employees
Prevention can be achieved through the employer's power to impose a disciplinary sanction on the harassing colleague.

BEWARE OF THE RECOGNITION OF INEXCUSABLE FAULT!

If the employer has not taken all the necessary measures to ensure the health - physical and mental - of his employees, his inexcusable fault may be recognised.
Will Mrs D. be able to bring an action for recognition of her employer's inexcusable fault because of the violence she suffered?
Insofar as the employer was or should have been aware of the danger to his employee, his inexcusable fault may be recognised and he may be held liable for breach of the safety obligation.

INEXCUSABLE FAULT IN THE EVENT OF AN ACCIDENT AT WORK OR OCCUPATIONAL DISEASE

Ms D.... was finally given time off work and her burnout was covered by the legislation on occupational risks. In other words, Ms D....'s burn out was recognised as an occupational disease

Scheme of the action for recognition of the inexcusable fault action :

- Recognition of the occupational disease or
of the accident at work by the Caisse primaire d'assurance maladie