Mis à jour : janv. 7
While it is a subject that remains a hot topic in labor courts, at the risk of becoming the mantra of sometimes ill-structured actions, the prevention of psycho-social risks in the company (in particular by pathogenic management) has has been the subject of abundant case law in recent years.
In principle, the employer is responsible for the health of the employees who work for him and must, as such, take all appropriate measures to put an end to the acts in question (article L.1152-4 of the labor code) .
In addition, the employer has the obligation to take and implement all the necessary measures to ensure the safety and protect the health of employees:
These measures include:
1 ° Actions to prevent occupational risks;
2 ° Information and training actions;
3 ° The establishment of an organization and appropriate means.
The employer sees to the adaptation of these measures to take into account the changed circumstances and tend to improve existing situations ”(article L.4121-1 of the Labor Code).
In a series of judgments handed down in 2002 on the recognition of the inexcusable fault of the employer after an occupational disease, the Court of Cassation had made this obligation of safety an obligation of result. The Court of Cassation had thus enshrined this obligation of result in matters of:
- protection against passive smoking and against moral harassment;
- obligation for the employer to carry out the recovery visit after an accident at work;
- dismissal for a reason related to the legitimate exercise by the employee of his right of withdrawal;
- obligation for the employer to take into account the proposals for individual measures of the occupational physician.
As a matter of principle, the employer, bound by an obligation of security of result in terms of protection of the health and safety of workers, must ensure its effectiveness. However, at the last state of its reading of the regulations, the Court of Cassation relaxed its position, even in the event of the risk to the health of the worker: in terms of health preservation, the employer is no longer required an obligation of result, but a reinforced obligation of means; thus, does not disregard the legal obligation requiring it to take the necessary measures to ensure the safety and protect the physical and mental health of its employees the employer justifying having taken all the measures provided for by articles L.4121-1 and L .4121-2 of the French Labor Code.
It is therefore necessary, in practice, to question the type of preventive measures that a company has every interest in instituting in order, when the time comes, to try to release its liability in the event of a deterioration in the state of health of a company. one of its employees in connection with their professional activity.
Without this list claiming to be exhaustive and subject to adjusting the means implemented to the capacities and workforce of the company (depending, quite naturally, on the representative institutions of the staff within it and on the efficiency of prevention relay), the following actions and documentation can be considered:
- conclusion of a collective framework agreement on hygiene, safety, health and living conditions at work (strengthening of prevention and monitoring of the Single Risk Document, development of relevant indicators in the field of occupational health work, involvement and better coordination of prevention stakeholders, technical control / advice / expertise actions, improvement of transparency and the flow of information on workplace risks, integration of occupational health issues into managerial operations through the intranet and written communications, identification of major risks - physical or psycho-social - definition of collective action plans, promotion of the quality of work organization, encouragement of professional dynamics to increase satisfaction at work, improved consideration of individual situations in the management of working conditions, information and awareness isation on health and the prevention of arduousness and professional disinsertion, detection of distressing situations and appropriate support for staff, initiatives to improve internal listening processes for employees, reconciliation of private and professional life …);
In this context:
- setting up a support unit for assaulted employees, a hardship study, a joint HR / Social and Economic Council (CSE) survey, a local prevention program (work environments);
- establishment of a transversal prevention program for psycho-social risks: dissemination of warning sheets, conflict management training (local training), analysis sessions with a psychologist, manager support systems (training, club managers, HR workshops);
- establishment and dissemination of an attack management procedure;
- poster campaigns on RPS (toll-free number and internet platform for listening and psychological support);
- establishment and distribution of memos on management assistance (with toll-free number and internet exchange platform);
- establishment and distribution of standard reporting forms in the event of external aggression;
- establishment, in conjunction with the CSE, of a methodology for identifying and analyzing RPS-type situations;
- establishment of a working group on PSR assessment methodology;
- proposals for action plans to secure employees in relation to the public;
- establishment and distribution of a memo sheet in the event of altercations between employees and internal violence within the company;
- very meticulous monitoring of occupational accidents (analysis of the circumstances, identification of the type of danger, recommendations, whether or not they are covered by the Primary Health Insurance Fund under the legislation on occupational risks, etc.);
- initiatives to improve internal employee listening processes: implementation of a social barometer and associated action plan (with a view to creating discussion areas, perpetuating the social barometer as an internal listening tool, encouraging feedback from managers on individual assessment interviews, train managers in change management, provide managers with tools to monitor the workload plan and regulate the workload of their employees, involve more managers in the operation of employee representative bodies, etc.);
- regular updating of the Single Risk Document ...
In short, the prudential risk incurred by the company is more than ever proportional to the means committed by it to establish a managerial framework conducive to the development of its staff.
Sources: Cass.soc., February 28, 2006 n ° 05-41.555 FS-PBRI, D. c / Sté Cubit France technologies; Cass.soc., January 28, 2009 n ° 07-44.556 FS-PB, W. c / Sté Sovab; Cass.soc., June 16, 2009 n ° 08-41.519 F-PB, K. c / Sté Elyo center est Méditerranée; Cass.soc., October 6, 2010 n ° 08-45.609 F-D, Sté Citram Aquitaine c / D .; Cass.soc., November 30, 2010 n ° 09-40.160 F-D, Association Autisme d'Eure-et-Loir c / B .; Cass.soc., March 20, 2013 n ° 12-14.468 F-D, M. c / Sté La Gardoise; Cass.soc., November 25, 2015 n ° 14-24.444, B. c / Sté Air France: RJS 2/16 n ° 123; Cass.soc., September 22, 2016 n ° 15-14.005 F-D, J. c / Sté Com for you: RJS 12/16 n ° 779.