The legal context
Under French employment law, employers are under a strict duty of care which requires them to ensure the protection of their employees’ health and safety (duty of care), the mere breach of such obligation will trigger their liability even if there is no fault on their part. Such duty of care is interpreted very extensively by case law. In this context, employers should comply strictly with the opinions and recommendations of the occupational health physician, particularly in the framework of medical visitation following an employee’s sick leave.
In addition, French employment law also strictly prohibits moral harassment. Breach of such prohibition can lead to particularly severe sanctions (penal sanctions, voiding of any measure taken on such basis, damages, constructive dismissal).
In this context, what happens when the employer does not adapt an employee’s working conditions according to the recommendations of the occupational health physician? Could such refusal be considered as constitutive of moral harassment ?
In a recent decision of the Supreme court dated 7th January 2015, an employee working in the industrial painting industry had been declared fit to work within the company provided that she no longer carried heavy loads. A year and a half later, she claimed the equivalent of constructive dismissal due to the degradation of her working conditions and moral harassment, and simultaneously lodged an action before the employment tribunal seeking the payment of damages for the loss incurred as a result of the termination of her employment and the moral harassment.
The Supreme court held that the fact that the employee was requested, on a regular basis, to carry loads of excessive weights in contradiction with the recommendations of the occupational health physician constituted a serious violation of the employer’s duty of care, and therefore constitutive of constructive dismissal authorising the employee to claim damages. Moreover, the Supreme court also ruled that the reiterated refusal of the employer to adapt the employee’s work and the employee’s regular assignment to a task that was beyond her capacities characterised a situation of moral harassment entitling the employee to additional damages.
This decision is in line with established case law according to which the breach of the employer’s duty of care can lead to the termination of the employment contract at the initiative of the employee with the same effects as unfair dismissal. It is also consistent with the definition of moral harassment, i.e. “repeated acts which have the purpose or the effect of degrading the person’s working environment, likely to affect their rights and dignity, impair their physical or mental health or compromise their professional career”. Consequently, it is of the utmost importance that employers seriously take into consideration and implement the findings and recommendations of the occupation health physician with regard to the employees’ working conditions in order to avoid the occurrence of a situation of moral harassment in the workplace as well as the consequences of an unfair dismissal.