Health, safety and working conditions / Legislation and Case Law in France / First Semester 2021

This newsletter reviews five recent significant judicial decisions on health, safety and working conditions.

• Mental health risks and inexcusable misconduct (CA Toulouse, December 18, 2020, n°19/03869)

Faced with serious economic difficulties, an employer significantly increased the objectives of one of its employees during his annual evaluation interview. The employee objected to this increase, describing it as unrealistic, but the employer maintained its position.

His working conditions subsequently deteriorated. In particular, the employee was unable to take his vacations. The occupational doctor also alerted the employer to the deterioration of the employee's health, but the employer did not follow up on this alert.

Seven months later, the employee took his own life, after having taken three periods of sickness absence and undergoing medical treatment.

The judges found that the employee's death was closely linked to his professional activity. It should therefore be covered by the occupational injury scheme.

The judges also considered that it was the employer's inexcusable misconduct that led to this death, as it repeatedly failed in its duties to prevent mental health risks.

This tragic event and its consequences are a reminder of the importance of preventing mental health risks, particularly at the moment, during a pandemic, which may be difficult for some companies, and cause them to put too much pressure on their employees.

• Employee's refusal of a medical examination: dismissal for serious misconduct is possible (CA Paris, January 6, 2021, n°18/09164)

An employer has a duty to keep its employees safe.

The provision of medical check-ups for the benefit of employees is one of the ways an employer can comply with this duty

Where an employee has had numerous periods of sickness absence, and at the same time has repeatedly avoided such medical check-ups, it is impossible for the employer to comply with its safety duties.  In these circumstances it is justifiable for the employer to dismiss the employee for serious/gross misconduct.

• Pressure from the employee on the occupational health service is gross misconduct (CA Versailles, March 10, 2021, n°18/04648)

An employee was declared fit to return to his job with certain restrictions by the occupational doctor.

The employee did not agree with this medical assessment, and tried to have it changed, by behaving aggressively and exerting pressure on the occupational health service personnel.

In particular, he claimed that the doctor was obeying the employer's orders and tried to extort from him a false declaration of an occupational accident.

The occupational doctor complained to the employer about the employee's behavior, and the employer dismissed him for gross misconduct.

The Court of Appeal confirmed that the employer's response in dismissing the employee was proportionate, stating that the employee's aggressive behavior towards the occupational health service personnel made it impossible to continue the employment contract, even during the notice period.

It should be noted that when an employee does not agree with the occupational health doctor's opinion, they may obtain a re-examination of the medical assessment on which the doctor's opinion is based by appealing to the labor court, using the accelerated procedure within a period of 15 days from the notification of the opinion.

• Replacement of an employee absent due to illness: assessment of the time allowed to the employer to identify the replacement of the dismissed employee (cass. soc., March 24, 2021, n°19-13.188, FS-PI)

Article L.1132-1 of the French Labor Code prohibits the employer from dismissing an employee because of a health condition.

However, the dismissal of an employee whose employment contract is suspended due to illness remains possible if the reason for the dismissal is the need to find a permanent replacement for the person concerned due to the objective disruption caused by their prolonged absence or repeated absences.

The dismissed employee must be replaced within a reasonable period of time after the dismissal.

This period is assessed by the judges of the court of first instance, taking into account the specific circumstances of the company, the job in question and the searches carried out by the employer to recruit a replacement.

With regard to the replacement of the director of an organization, a court of appeal considered that 6 months constituted a reasonable period.

• Unfit employee neither reassigned nor dismissed: assessment of the salary to be paid (cass. soc., 5 May 2021, n°19-22.456 F-D)

An employer who does not redeploy or dismiss an employee declared unfit to perform his role by the occupational doctor must resume payment of the employee's wages at the end of a one-month period following the date of the medical examination at which he is declared fit to return to work.

The French Supreme Court specified that the salary to be paid is the one corresponding to the job the employee held before the suspension of his employment contract, and that it includes all the elements of his compensation, particularly the “thirteenth month” payment that the employee would have received had he been working.