French employment law imposes a duty of care on the employer requiring it to ensure that the health and safety of its employees is not impacted as a result of their work. Such duty is interpreted very broadly by the courts, which only allow employers to escape liability in very limited circumstances such as force majeure.
In addition to this general duty, the legislation also obliges employers to enforce a smoking-free working environment as part of the public policy against smoking.
In this legal background, what happens when an employee claims damages as a result of his/her exposure to cigarette smoke during breaks he/she took with colleagues?
In a decision of the Supreme Court dated 3rd June 2015, an employee, after being dismissed for physical inability recognized by the occupational health physician, filed various claims in relation to the performance and termination of her contract. In particular, she claimed damages on the basis that she was exposed to cigarette smoke at the workplace in violation of public health regulation which caused her to be on sick leave at several occasions.
In this case, the Court of Appeal dismissed the employee’s claim on the grounds that she voluntarily accompanied her colleagues during cigarette breaks they took in the company’s storage room without being required to do so. The Court of Appeal also noted that the illness that caused her sickness leaves and physical inability was not related to passive smoking and that she did not, at any time, complain about smoking exposure during the performance of her employment. However, the Supreme Court reversed the ruling of the Court of Appeal and held the employer liable for breach of its duty of care.
This ruling is an illustration of the severity with which French courts appreciate the extent of the employer’s duty of care and of the few possibilities employers have to escape liability in this regard. Such decision is in line with previous case law in which the employer’s liability was admitted in similar cases of employees’ exposure to passive smoking in the workplace.
Such liability is even more likely to be upheld where, as was the case here, the employer breached the smoking prohibition in force in the workplace. The consequences could be significant as in such cases the employee is notably allowed to claim damages and even the equivalent of constructive dismissal, which has the same consequences as unfair dismissal. Employers need to be particularly careful to enforce a strict non-smoking environment and to refrain from tolerating any exception.