NewsletterNewsletter No. 170 – February 2023
ASBESTOS LITIGATION: Undermining dignity, a new ground for compensation of employees exposed to toxic substances.
As a reminder, the use of asbestos has been banned in France since 1 January 1997. In this case, a company, which benefited from an exemption from this ban until 31 December 2001, continued to use asbestos until 2005. Employees then referred their case to the labor court seeking compensation for two separate damages: the loss of anxiety resulting from their exposure to asbestos, but also damage caused by the employer’s breach of his duty of loyalty in the performance of the employment contract. In a decision of 8 February 2023, the employment division of the the French Supreme Court (Cour de Cassation) states as a reminder that “it follows from article L.1222-1 of the labor code that undermining the dignity of his employee constituted for the employer a serious breach of his obligation to perform the employment contract in good faith” and considered, like the Court of Appeal, that the illegal use of asbestos by an employer constitutes such a breach. It also and above all confirms the fact that the employee, whose right to compensation for the prejudice of anxiety is extinguished, may nevertheless obtain damages for the undermining of his dignity, when his employer has illegally used asbestos (Cass. Soc., 8 February 2023, No. 21-14.451).
WHISTLE-BLOWERS: Dismissal of a whistle-blower: details on the duty of the summary proceedings judge (juge des référés).
Employees known as whistle-blowers benefit from a protective status intended to fight against any retaliatory measures taken against them as a result of the reports or disclosures made. This status was recently reinforced by Law No. 2022-401 of 21 March 2022. In this case, an employee contacted her company’s ethics committee to report facts likely to be qualified as corruption, then acts of harassment of which she considered herself a victim because of the alert given. The committee concluded that the situation was not contrary to the ethical rules, and the employee was notified of her dismissal. She referred her case to the formation of summary proceedings of the labor court, seeking the nullity of her dismissal which occurred in violation of the protective provisions for whistle-blowers. Her request was rejected by the trial judges, who said that there was no reason for summary proceedings. In a judgment of 1 February 2023, the Cour de cassation held that the summary proceedings judge had jurisdiction and that it was incumbent on him, on the one hand, to verify whether the elements submitted by the employee made it possible to presume that the latter had triggered an alert in compliance with the legal provisions governing whistle-blowers and, on the other hand, as the case may be, to find out whether the employer provided proof that the dismissal decision was justified by objective elements unrelated to the declaration or to the testimony of said employee. This decision, which adopts a broad conception of the investigative powers of the summary proceedings judge, tends to ensure an effective protection for whistle-blowers (Cass. Soc., 1 February 2023, No. 21-24.271).
SOCIAL AND ECONOMIC COMMITTEE (CSE): Employers’ organizations and trade unions freely determine the separate establishments.
In this case, Air France had signed a company agreement with four trade unions relating to the establishing of establishment social and economic committees, of the company’s central corporate social and economic committee and of the scope of the separate establishments. The agreement provided for the division of the company into seven separate establishments. A union organization summoned the signatory parties in order to request the cancellation of the company agreement, as well as the establishing of a separate establishment and of the related CSE specific to airline pilots. The Court of Appeal rejected this request, a position confirmed by the Cour de cassation in a decision of 1 February 2023, pursuant to which “the signatories of an agreement concluded according to the conditions mentioned in Articles L.2313-2 and L.2313-3 of the labor code freely determine the criteria for setting the number and scope of separate establishments within the company, on the condition, however, with regard to the principle of participation consecrated in paragraph 8 of the Preamble to the Constitution of 27 October 1946, that they are such as to allow the representation of all the employees”. This solution contributes to the construction of clear and coherent case law on separate establishments based in particular on the primacy of the collective agreement over the employer’s decision, as well as the development of criteria for the autonomy of the establishment (Cass. Soc., 1 February 2023, No. 21-15.371).
PREJUDICE OF ANXIETY: The employee of an external company can request compensation from the user company.
As a reminder, the prejudice of anxiety is caused by the feeling of permanent worry that people who have been exposed to a toxic substance may experience. It is generated by the risk of declaring at any time a disease linked to the exposure to such a substance (press release of the Cour de cassation on the decision of 8 February 2023). In this case, employees worked for several decades on behalf of various employers on various sites of a railway company pursuant to a subcontracting contract. When the latter were dismissed for economic reasons, the occupational doctor gave them a certificate of exposure to asbestos. The employees referred their case to the labor court, in order to obtain compensation, from their employer but also from the user company, for their prejudice of anxiety. The Court of Appeal upheld the claim for compensation by the user company, followed by the employment division of the Cour de cassation in a decision delivered in plenary session on 8 February 2023. It states as a reminder that European law requires user companies to ensure the general coordination of their own prevention measures with those put in place by the external company which operates in their establishments, and to draw up a prevention plan themselves when an operation presents particular risks. In this case, the user company had not complied with its general obligation to coordinate preventive measures, a negligence which was at the origin of the prejudice of anxiety suffered by the employees of the subcontractor company (Cass. Soc., 8 February 2023, No. 20-23.312).
PROFESSIONAL UNFITNESS: An employee declared unfit cannot be dismissed for a reason other than unfitness.
In this case, a disciplinary procedure had been initiated against an employee, who was declared unfit for his job during the course of the procedure, the opinion of the occupational doctor specifying that “the state of health of the employee [was] an obstacle to any redeployment in employment“. The employee, dismissed for gross misconduct, referred his case to the labor court to contest his dismissal. The Court of Appeal rejected his request and considered that the occupational doctor’s opinion did not deprive the employer of the possibility of continuing the procedure and notifying the employee of his dismissal. In a decision of 8 February 2023, the Cour de cassation agreed with the latter and annulled the decision of the Court of Appeal, considering that the “public order” provisions of articles L.1226-2 and L.1226-2-1 of the labor code “prevent the employer from pronouncing a dismissal for a reason other than unfitness, regardless of whether the employer has previously initiated a dismissal procedure for another cause”. The severe position that is adopted here does not fail to surprise, since no legislative text consecrates the public order nature of these provisions (Cass. Soc., 8 February 2023, No. 21-16.258).