Warning and withdrawal rights in the event of serious and imminent danger: what do the regulations say?

‍Whenworkers are faced with a serious and imminent danger in the course of their work, they can exercise their right to alert and their right to withdraw. In this article, find out when to use the right to alert, how to exercise it and the employer's obligations!

What is the right to alert in the event of serious and imminent danger?

The right to alert in the event of serious and imminent danger enables the worker to alert the employer as soon as he notices(Article L4131-1 C.Trav.) :

• a serious and imminent danger to life or health;
• or a fault in the protection systems.

The exercise of this right to alert must be motivated by a particularly serious or unusual danger that poses an immediate threat to the worker.

Examples situations presenting a serious and imminent danger :

• malfunction of a ventilation system when using hazardous chemicals ;
• no roof railing ;
• Abnormally low temperature in work premises;
• poorly maintained or damaged work equipment ;
• ...

What is the right of withdrawal?

The right of withdrawal allows a worker to stop work or leave his or her post when he or she observes a serious and imminent danger to life or health, or a defect in protective systems (Article L4131-1 C.Trav.).

⚠️ Warning: Workers who make use of their right of withdrawal must remove themselves from the dangerous situation without creating a new situation of serious and imminent danger for others. (Article L4132-1 C.Trav.).

The employer does not have the right to ask a worker who has exercised his right of withdrawal to return to work as long as the danger in question persists, particularly if it is due to a defect in a protective system.

🔍 Focus: The right of withdrawal is logically linked to the exercise of the right to alert in the event of serious and imminent danger. However, it is not mandatory to alert the employer before exercising the right of withdrawal.

How to exercise the right to alert and the right to withdraw?

In order to provide the most appropriate solutions, the exercise of the right to alert and the right to withdraw requires compliance with a strict procedure by both employer and employee.

What situations justify the exercise of the right to alert and the right to withdraw?

As soon as a worker becomes aware of a situation which he or she has reasonable cause to believe presents a serious and imminent danger, the exercise of the right to alert and the right to withdraw is in principle justified.

For this reason, no sanction or deduction of wages may be taken against a worker (or group of workers) who has withdrawn from a work situation which he had reasonable cause to believe presented a serious and imminent danger to his life or to that of others(Article L4131-3 C.Trav.).

Examples of situations justifying the exercise of the right of withdrawal:

• absence of protective equipment against falls from a height during apartment work ( soc., May 9, 2000, no 97-44.234) ;
• temperature of 2°C in a workshop (CA Paris, 22nd ch. sect. C, June 7, 1988);
• malfunction of a safety button on a work machine that had not been periodically checked ( soc., Dec. 11, 1985, no 83-45.566).

On the other hand, when a worker exercises his right of withdrawal without reasonable cause, he may be penalized, in particular by deductions from wages for abusive use of the right of withdrawal(Cass. soc. July 11, 1989, no. 86-43.497).

Thus, the legitimacy of the right to withdraw is determined by the reasons that prompted the worker to withdraw from the presumed dangerous situation.

A worker's bad faith , the total absence of danger or the presence of a danger inherent to the activity and for which protective measures have been put in place do not justify the use of the right of withdrawal.

Examples of unjustified withdrawal situations:

• The assault of a worker does not justify the exercise of the right of withdrawal after the incident, as there is no reason to believe that the event could recur (CA Paris, 21st ch., April 26, 2001);
• An epidemic in a hospital or a technical problem in a nuclear power plant do not justify the use of the right of withdrawal because these risks are inherent to these activities (TA Versailles, June 2, 1994, no. 872364 and CA Versailles, February 26, 1996);
• Weather conditions that have no impact on worker safety do not provide reasonable grounds for believing that a situation presents a serious and imminent danger ( soc., January 20, 1993, no 91-42.028).

What procedure applies to the right of warning and the right of withdrawal?

Step 1: The worker exercises his right of withdrawal

A worker who observes a situation he or she considers dangerous can stop work by leaving his or her post.

⚠️ Caution: When withdrawing from the hazardous situation, thehe worker must not create any additional danger for other workers.

Step 2: Workers exercise their right to alert in the event of serious and imminent danger

Once the worker has removed himself from the situation deemed dangerous, he must warn the employer of the serious and imminent danger he has been confronted with.

🔍 Focus: Workers can first notify an elected member of the social and economic committee (CSE) so that the latter can alert the employer of the serious and imminent danger (Article L4131-2 C.Trav.).

Step 3: The employer implements safety measures and instructions

📌 Important :

Once the employer is aware of a serious and imminent danger, he must give instructions and take the necessary measures to enable workers to stop their activity and move to safety, in particular by immediately leaving their workplace(Article L4132-5 C.Trav.).

Depending on the danger encountered, the employer must adapt measures and instructions. He may have to evacuate the entire company or shut down work equipment if the danger so warrants.

Step 4: The employer enters the alert in a special register

When the alert is given by an elected member of the CSE, the employer must record it in the register of serious and imminent dangers(Article L4132-2 C.Trav.).

The notice is dated and signed and must include the following information(Article D4132-1 C.Trav.):

• the workstations affected by the observed hazard;
• the nature and cause of the danger ;
• the names of exposed workers.

ℹ Please note: The pages of the register of serious and imminent danger must be numbered and authenticated by the CSE's stamp.

Step 5: The employer investigates and implements measures to resolve the hazard

If the alert is given by a CSE member, the employer and the alerting CSE member investigate the danger together(Article L4132-2 C.Trav.).

The employer must also take all necessary steps to put an end to the dangerous situation.

Step 6: Agreement between the employer and the CSE to resolve the hazard

Following the investigation, if there is disagreement on the reality of the danger or how to put an end to it, the CSE must be convened as a matter of urgency within 24 hours(Article L4132-3 C.Trav.).

🔍 Focus: The labor inspector and the prevention officer from the regional health insurance fund must be informed immediately by the employer, and may attend this exceptional meeting..

Finally, in the event of disagreement between the employer and the majority of the CSE on the measures to be taken, the employer must immediately refer the matter to the Labour Inspectorate(Article L4132-4 C.Trav.).

What are the risks for the employer in the event of serious and imminent danger?

📌 Important :

When a worker is the victim of an accident at work caused by a serious and imminent danger which had been reported to the employer, the latter's inexcusable fault is recognized by law(Article L4131-4 C.Trav.).

In practice, this means that the employer will automatically have to pay additional compensation to the victim of such an accident.

In addition, when the labor inspectorate observes a serious and imminent danger to the physical integrity of workers, it is authorized to immediately draw up an official report without prior formal notice(Article L4721-5 C.Trav.).

🔍 Focus: In certain specific cases (lack of protection against falls from a height, absence of devices to prevent burial, etc.), the labor inspectorate can , order a temporary halt to the work or activity concerned (Article L. 4731-1 C.Trav.).

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