Employers must react when alerted to threats to employee’s safety. Failure constitutes an inexcusable fault

Published on : 30/09/2021 30 September Sep 09 2021

In case of an accident at work (or an occupational disease), the employer commits an “inexcusable fault” if it was aware of the danger to which the worker was subjected and failed to take the necessary measures to protect him. The benefit of the inexcusable fault is automatic when the employee alerted his employer on the existence of a risk which then occurred.  

For the French Supreme Court, there is no need of a proven risk. A potential risk that was reported to the employer is sufficient to automatically trigger the employer’s financial liability.

This was the case of an employee who, after having forwarded an anonymous death-threat letter to his employer, was the victim of assault:

He informed his employer and the secretary of the health and safety committee of the letter, and then, 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 recognize 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”. The employee, the same day, 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 does not characterize an alert given to the employer, concerning an exposure of his person to a risk of physical aggression. 

The Court of Appeal rejected the employer’s automatic liability by excluding the existence of a proven risk pursuant to Article L.4131-4 of the French Labor Code. 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 Labor Code provides that the benefit of the employer's inexcusable fault is automatic for an employee who is victim of an occupational accident or disease when they or a staff representative on the health, safety and working conditions committee had informed the employer of the risk that had materialized.

The Supreme Court highlights that the appellate judges had noted that the victim had forwarded the employer a threatening letter received in a context of strong internal tensions in the company. It considers that he therefore informed the employer of the risk of aggression to which he was exposed. The high court judges concluded that the appeal court, which did not draw the legal consequences from its own findings, violated article L.4131-4 of the Labor Code.


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