The legal context

Under French employment law, both employers and employees are under a duty of care which requires them to take health and safety considerations into account throughout the employment relationship. Although the employer’s duty of care is interpreted very extensively by case law, which does not entitle the employer to escape liability except in very limited circumstances, the duty of care imposed on employees is less stringent and only requires them to take care, within their capabilities, of their health and safety as well as these of other persons concerned by their acts and omissions at work. In this context, it is generally admitted that an employer can discipline, and even dismiss, employees who do not follow the safety instructions in force in the workplace.

However, what happens if it appears that the employer itself is not beyond reproach in causing the situation that has resulted in an employee’s breach of safety instructions? Is the employee’s responsibility reduced as a result of the employer’s own fault?

The case

In a recent decision of the French Supreme Court dated 17th December 2014, a team leader had refused on several occasions to wear individual protection equipment and deliberately disregarded safety rules during the installation of glazing at heights. The employer consequently dismissed him for serious misconduct (“faute grave”) on the ground that he deliberately violated applicable safety rules. Challenging this decision, the employee lodged an action for unfair dismissal before the employment tribunal.

The Supreme Court held that the dismissal was unfair, holding that the flagrant violation of safety rules by the employee had to be placed in context taken together with the fact that the employee had been declared unfit to work at heights according to a medical certificate delivered by the occupational physician. Therefore, the employer had violated its own obligations in requesting the employee to work under such conditions, with the result that no misconduct could be reproached to the employee.


This decision is not surprising, since French employment law is very strict with regard to employers’ obligations regarding the protection of employees’ health and safety and requires, in particular, that employers comply strictly with the opinions and recommendations of the occupational physician. More generally, this ruling may also be viewed as embodying the principle that one cannot invoke other people’s faults when such faults result from their own wrongdoings. It is worth noting that the Supreme Court reiterated this solution in a ruling rendered on the same day in similar circumstances.

It follows from such case law that the duty of care imposed on the employer and the employees are closely intertwined so that the employer cannot sanction the employees’ non-observance of safety rules without taking into account the context in which such breaches have occurred. In other words, if an employee’s misconduct is proved to be the consequence of the employer’s inaction, negligence or its own breach of health and safety regulations, the scope and seriousness of such misconduct may be mitigated or even discharged entirely. In conclusion, it is paramount for any employer to ensure that they are irreproachable with regard to health and safety regulations in the workplace if they want to be able to invoke employees’ misconduct as a basis for disciplinary actions against them.