By Roselyn Sands, EY Societe d'Avocats
Over the past years, health and safety has been at the heart of French legislation and case law. Long considered essential to preserve the physical health & safety of the employees, the notion of health and safety in France has evolved and the expanded notion of health and safety now focuses not only on physical health but also on mental, emotional and psychological health.
To underscore the importance of these legal developments, here are some examples:
1. Recent case law
• In a recent decision of the Paris Court of Appeal, a restructuring plan organized by one of France’s largest entertainment retail chains was deemed illegal because “the restructuring plan failed to account for health and safety risks tied to the fact that the plan would potentially lead to an increase in individual workload which would, in turn, increase stress and affect the psychological health of the remaining employees”. Thus, a company planning a restructuring needs to evaluate and quantify potential impacts on individual workloads of the remaining employees, instead of merely focusing on the exiting employees.
• The French Supreme Court ruled that unless proper supervision was applied, contracts which provided that employees were to be paid per working day and not per working hour were invalid, given that they threatened the psychological health of employees. This decision had a considerable impact since such contracts were commonplace for managers, given that, as a general rule, the working week in France cannot exceed 35 hours. Therefore, in order to remedy this situation, employers must now set up bi-annual meetings with employees whose work contract contains such provisions, in order to evaluate the psychological impact of the employee’s workload and avoid excessive stress at work.
2. Bullying claims are more and more commonplace
The focus on psychological health has led to new litigation tied to bullying and discrimination at work. Employers must not only guarantee the physical health of their employees, but must also ensure that the psychological health is protected. Over the past few months, there have been several cases were employers were fined on the basis of “health and safety” violations because they failed to protect an employee against “psychological” bullying by his/her colleagues and superiors.
3. New health & safety committee obligations
The powers of the French health & safety committees have also expanded in this new environment. As such, mandatory health & safety consultation is now required in unexpected situations, such as, in a restructuring context and during stressful periods such as performance reviews.
In conclusion, health and safety in France is becoming a prevalent issue for companies which must now be concerned with ensuring the physical health of their employees, but must also protect them against overwork and stressful working conditions and related psychological harm.