A shift on the performance obligation of safety

January 22nd 2016

Has the Cour de cassation just shown a first shift in its case law on the notion of the performance obligation of safety?

The Cour de cassation, in light of its cases called “asbestos” of 2002, had illustrated this notion of performance obligation of safety by confirming that the employer was bound by a performance obligation of safety with regard to employees’ health and safety by virtue of their employment contracts. This obligation should be understood as a duty of care. This case law had been taken in light of the legislative developments resulting from a European directive of 1989, giving rise to the application of the law no. 91-1414 of December 31, 1991, codifying Article L.230-1, now Articles L.4121-1 and L.4121-2 of the French Labour Code, on this preventive obligation.

The specificity of the performance obligation is that it is ground for liability of the obliging simply because the obligation has not been performed. In sum, insofar as harm to employees’ safety or health has been acknowledged, the employer’s liability shall be upheld, unless a force majeure event can be proven, which is impossible to be drawn from the facts.

Yet, on November 25, 2015 (no.14-24444) the Cour de cassation confirmed the Court of Appeal’s decision which had dismissed the employee’s claims on the basis of his employer’s non-compliance with his performance obligation of safety.

The employee, a cabin attendant on long-haul flights, had brought the matter before the Conseil de prud’hommes in order to have his employer sanctioned to pay him damages for non-compliance of his performance obligation of safety, after the attacks of September 11, 2001, on the basis of the provisions of Article L.4121-1 of the French Labour Code, pursuant to which the employer shall take the necessary measures to ensure safety and protect the employees’ physical and mental health. In 2006, the employee had suffered from a panic attack prior to taking a flight, which resulted in a cessation of work. According to him, this panic attack was the result of the 09/11 attacks, to which he had been a witness, and that his shock had not been sufficiently attended to by his employer. In particular, he asserted the lack of psychological follow-up or any offer to attend an individual meeting upon his return to France.

The Cour de cassation, confirming the decision issued by the Court of Appeal, recalled that “the employer who justifies that he has taken all the measures provided by Articles L.4121-1 and 4121-2 of the French Labour Code does not fail to comply with his legal obligation to take the necessary measures to ensure the safety and protection of the employees’ physical and mental health”.

By stating that the Court of Appeal had acknowledged numerous formalities made by the employer with his personnel after the 09/11 attacks (assistance provided to the crew which had assisted in the attacks, by the medical personnel who had the possibility to invite them to attend psychiatric consultations), that since the attacks, the employee had been declared 4 times “fit for work” and had carried out his missions without any difficulties, and that finally, the medical elements presented were not related to the attacks, it had “on these sole grounds, that were specifically endorsed, reached a decision that the employer had not failed to comply with his performance obligation of safety”.

If the employer is able to prove that he did his utmost to respect his prevention obligation of safety, then this shall mean that we are no longer in the context of a performance obligation but of a “simple” best efforts obligation, which “only” involves implementing all the means to reach an objective, without necessarily involving the obligor’s liability if the objective is not met.

It is nonetheless necessary to consider that this obligation shall be an enhanced obligation: it shall not be sufficient for the employer to take minor safety prevention measures, but it shall remain a best efforts obligation.

This shift, if it continues, is particularly important for the employers who take all the measures to ensure their employees’ safety and health: if, nonetheless, the employees’ health is affected, their liability shall not necessarily be incurred, they have a right to challenge this. Yet, they must be able to prove that they have done their utmost to ensure the protection of safety and health, which shall require them to be endlessly vigilant on these fundamental issues.

The actual implementation of an occupational risks prevention policy has become an issue at the fore.

Mireille Goutailler