OCCUPATIONAL ACCIDENTS: An employee’s depression following an altercation he has himself caused is an occupational accident.
Article L.411-1 of the social security provides that: “An accident which occurred due to work or on the occasion of work to any employee or to any person working, for any reason or at any location whatsoever, for one or more employers or company managers shall be considered as an occupational accident, whatever its cause.” This is a rebuttable presumption.
In this case, following an altercation with his superior, a RATP employee had been diagnosed as suffering from a mixed anxiety–depressive disorder. After an investigation, it appeared that the employee had caused the altercation, so that the fund had dismissed the occupational nature of the accident. The employee contested the denial of compensation before the social security courts. To dismiss the victim’s action, the Court of appeal admitted that only the employee had caused the dispute which opposed him to his superior, a circumstance which was likely, according to it, to rule out the description as occupational accident. It gives the opportunity to the French Supreme Court (Cour de cassation) to state as a reminder that, in order to rebut the presumption that facts which occurred during the victim’s work and at his/her workplace shall be described as occupational accidents, proof had to be produced of a cause totally unrelated to work, which was not the case here (Cass. 2nd civ., 28 Jan. 2021, No. 19-25.722).
NULL AND VOID DISMISSAL: Reinstatement of an employee having found a new position.
In this case, an employee had been dismissed on personal grounds. Considering that the termination resulted from psychological harassment he had been the victim of, he had brought his case before the labor court to claim the nullity of the dismissal. The trial judges agreed with him and ordered his reinstatement, although the employee had found new employment. The employer thus appealed to the Cour de cassation asserting that the fact that his former employer had found new employment made his reinstatement physically impossible. The Cour de cassation decided otherwise : « After having noted that the company did not justify that the employee’s reinstatement was physically impossible, the court of appeal had rightly ruled that the fact, for the employee to have joined another employer, was not likely to deprive him of his right of reinstatement” (Cass. Soc. 10 Feb. 2021, No. 19-20.397).
NULL AND VOID DISMISSAL: No reinstatement in case of a request for judicial termination and for nullity of a dismissal in a same instance.
An employee had requested the judicial termination of her employment contract at her employer’s expense for harassment, discrimination and unequal treatment. She had been dismissed during the procedure. While they had dismissed the employee’s request for judicial termination on the ground that none of the grievances was established, the trial judges determined the nullity of the dismissal by considering that the latter was a sanction for the employee’s harassment accusations and also ordered the latter’s reinstatement. Before the Cour de cassation, the employer contested this reinstatement by asserting that the employee’s maintaining of her request for judicial termination showed her will to terminate the contract which was not compatible with reinstatement. The Highest court agreed therewith: “when an employee requests the judicial termination of his/her employment contract and the nullity of his/her dismissal during the same instance, a court, which has admitted the nullity of the dismissal, cannot grant the request for reinstatement” (Cass. Soc., 27 Jan. 2021, No. 19-21.200).
PERSONNEL REPRESENTATIVES: Conditions justifying a request for an expert’s assessment for serious risk.
Former article L.4614-12 §1 of the labor code provided that “the health, safety and working conditions committee may use an approved expert:
1° When a serious risk, showed or not by an occupational accident, an occupational disease or with an occupational nature is observed in the establishment”. In this case, the elected members of a CHSCT had voted the use of an approved expert as regards psychosocial risks. They justified such use by difficulties encountered while holding their office and by psychological pressure. This assessment was limited to the personnel representatives only. The trial judges had annulled the deliberation of the CHSCT and the latter appealed to the Cour de cassation. But the Cour de cassation ruled out the legal ground of the CSE in these terms: “Having noted that the deliberation was based on no current serious risk, identified and described in a concrete manner towards the personnel representatives specifically, who were the only ones referred to in the scope of the assessment, and only related, in any case, to the general working conditions of the personnel representatives with respect only to their professional duties, that none of the supplied elements allowed to establish that the personnel representatives occupied positions which were by nature different than those of the other personnel members and that they would thus be subjected to working conditions different than those having already given rise to the first assessment measure, still ongoing with the same expert, whose scope of work and assignment definition were identical, the president of the court of first instance was able to rightly deduce from these sole grounds that the existence of a serious risk was not established” (Cass. Soc.,27 Jan. 2021, No. 19-19.478).
Instructions from the Directorate-General for Labor (DGT) enjoin labor monitors and inspectors to reinforce their mobilization regarding the use of telework and thus to:
– Reconnect with the most important companies in order to ensure that the recommendations of the national protocol are duly complied with;
– Mobilize the employers’ organizations and trade unions in this respect;
– Remind employers, and notably SMEs, of the possibility to rely on the ANACT (the French National Agency for the Improvement of Working Conditions) and on its occupational health department;
– Make the toll-free number set up to address workers’ issues (0 800 13 00 00) known.
The instructions also invite them to systematically monitor the prevention measures and notably check “the measures taken to fight against the risk of contamination and the implementation of telework for all “teleworkable” tasks”. (DGT Instructions of 3 Feb. 2021).
PARTIAL ACTIVITY: Extension of the partial activity measures and adjustment of the ratio variation.
The possibility to adapt the partial activity coverage ratio provided for by the order No. n°2020-770 of 24 June 2020 to the benefit of the “protected sectors” shall be extended until 31 December 2021. A second order provides for, on the other hand, the possibility for the government to grant an increased coverage to the “protected sectors” based on the impact of the health crisis on the activity of the company (Ord No. 2021-135 and 2021-136 of 10 Feb. 2021, Official Journal of 11 Feb.).
- i.e., a health, safety and working conditions committee ↑