Health and safety of employees is highly protected in France. Employers are responsible for the prevention of any damage to their employees’ health and safety resulting from their work. Amongst other things, French law requires employers to ensure that their employees are protected from any harassment at work.
But another provision of the French Employment Code, which is far less known outside of France, states that employees are also liable to take care, not only of their own health and safety, but also of that of other employees in the company who could be affected by their behaviour or negligence.
The French Supreme Court recently had occasion to clarify the scope of such principle in a recent decision dated 8th March 2017.
In that case, a wide investigation was launched in a retail store in the south of France (member of a significant distribution network) following the disclosure, by a former employee, of an email revealing a pattern of harassment conducted by the management of the store. In the context of this investigation, around 30 employees testified before a bailiff as to the unacceptable actions of the director of the retail store. The responsibility of the human resources manager was also raised, given in particular that she had tried to protect the director against employees.
Following such investigation, the director of the retail store was dismissed for serious misconduct. The HR manager was also dismissed for misconduct, based on her lack of action against the director’s harassment policy and also based on her breach of her own health and safety obligation. The employer also considered that she was partly responsible for the deterioration of the employees’ working conditions.
The HR manager filed a claim against her employer, arguing she did not commit any misconduct because she did not harass the employees herself.
The Court of Appeal, confirmed by the Supreme Court, dismissed the HR manager’s claim, considering in particular that:
- She was completely aware of the unacceptable behavior of the director towards the employees, as she worked in close cooperation with him;
- She did nothing to end the harassment even though as a HR manager, it was her role to ensure a smooth social climate.
This decision is an illustration of an employee’s duty of care. The French employment code provides that all employees may be liable in this respect, taking into account their training and their abilities. HR managers are naturally in the front line given the scope of their duties, and it can easily be imagined that they are subject to a reinforced requirement to protect other employees against any policy of harassment.