What is the employer's responsibility in terms of health and safety in the workplace?

To ensure the health and safety of workers, employers must implement a wide range of measures to prevent occupational hazards. Should they fail to do so, employers may be held civilly and criminally liable.

What is employer responsibility in occupational health and safety (OHS)?

Employers are obliged to ensure the safety and protect the physical and mental health of their workers , and must therefore(Article L4121-1 C.trav.) :

• implement actions to prevent occupational hazards ;
• set up information and training initiatives ;
• set up a work organization and appropriate resources.

In the event of negligence or breach of this safety obligation, the employer may be held civilly and criminally liable.

This is a safety obligation of result, not merely of means. Indeed, the implementation of preventive measures is not in itself sufficient to relieve the employer of responsibility: it is indeed the actual result of the measures implemented that matters(Cass, civ, chambre sociale, November 25, 2015, 14-24.444).

In other words, in the event of a workplace accident or occupational disease, even if the employer " did his best ", he may be held liable for failing to prevent the risk from occurring.

Depending on the occupational hazards present in the workplace, employers are subject to a greater or lesser number of preventive measures. Here are a few examples of obligations common to all companies:

• carry out a professional risk assessment(Article L4121-2 C.trav.);
• set up a ventilation system for company premises(Article R4222-4 C.trav.) ;
• prevent fire hazards(Article R4216-2 C.Trav.) ;
• install fire signs(Article R4227-13 C.Trav.) and extinguishing equipment(Article R4227-28 C.Trav.) ;
• ...

Employers' civil and criminal liability: when can they be incurred?

Employers who fail to meet their safety obligations may be held civilly and criminally liable.

Employer's civil liability

Employers may be held civilly liable if they fail to meet their legal safety obligations and contribute to the occurrence of an accident or occupational disease.

ℹ Please note: The employer's civil liability may also be sought upstream of any physical or mental injury to the worker.

In the event of an accident affecting an employee in the workplace, both the employer's liability and the victim's lump-sum compensation under the occupational injury insurance scheme are automatic.

However, if the employee wishes to obtain additional compensation, he or she can demonstrate that the occupational accident or disease is the result of an inexcusable fault on the part of the employer (article L452-1 of the CSS). This inexcusable fault is characterized by the fact that the employer was or should have been aware of the danger and did not take the necessary measures to remedy it.

Examples: inexcusable misconduct may be deemed to have occurred if the employer failed to include the risk in the occupational risk assessment document. It may also be recognized in the event of the absence, insufficiency or failure of risk prevention measures put in place (Cass, crim,June 11, 2014, 13-85.601).

⚠️ Caution: The employer's inexcusable fault is recognized by law when the danger had been reported to the employer before the damage occurred (Article L4131-4 C.trav.).

Recognition of inexcusable fault results from an amicable agreement between the employer and the employee victim. However, if no amicable agreement is reached, and in particular if there is disagreement on the existence of inexcusable fault or on the amount of the increase in compensation, it is up to the social security court to decide(Article L452-4 CSS).

When the employer's inexcusable fault is recognized, the accident victim benefits from additional compensation(Article L452-1 CSS) and may also claim compensation from the employer for the damage caused(Article L452-3 CSS).

The complementary compensation and the reparations requested by the victim are paid by the Caisse primaire d'assurance maladie (CPAM), which then turns to the employer (or its insurance fund) for reimbursement(Article L452-2 CSS).

ℹ Please note: Employers can insure themselves against the financial consequences of their own inexcusable fault.

Criminal liability of the employer

Criminal liability under the French Penal Code

Under Article 223-1 of the French Penal Code, the employer may be prosecuted even in the absence of damage, where a manifestly deliberate breach of a particular duty of care or safety has exposed an employee " to an immediate risk of death or injury". immediate risk of death or injury likely to result in permanent mutilation or disability ". The penalty is one year's imprisonment and a fine of 15,000 euros.

In the event of a workplace accident, and depending on the severity of the damage sustained by the employee, the employer may be held criminally liable for manslaughter or unintentional injury. In such cases, the employer is liable to up to three years' imprisonment and a fine of 45,000 euros(article 222-19 C. pén. and article 221-6 C. pénal).

ℹ Please note: In the event of manifestly deliberate breach of a particular duty of care or safetythe penalty is increased to :

-five years' imprisonment and a fine of 75,000 euros for manslaughter (article 221-6 C. pén.) ;

-three years' imprisonment and a fine of 45,000 euros in the event of total incapacity to work for more than 3 months (article 222-19 C.pén.).

Note that when the employer has not directly caused the damage, he can only be held criminally liable in two cases(article 121-3 C. pén.):

• a manifestly deliberate breach of a particular duty of care or safety required by law or regulation;
• a characterized fault exposing the worker to a particularly serious risk of which he could not have been unaware.

Criminal liability under the Labour Code

The French Labor Code also provides for criminal penalties for breaches of certain occupational health and safety obligations (even in the absence of any damage).

Failure to comply with the following provisions is punishable by a fine of 10,000 euros(Article L4741-1 C.trav.):

• warning and withdrawal rights ;
• worker training ;
• use of workplaces;
• obligations relating to work equipment, in particular its use and maintenance;
• prevention of certain occupational hazards (chemical, biological, noise, vibration, radiation, etc.);
• prevention of work carried out by a subcontractor ;
• the coordination of prevention in basic nuclear installations and provisions in the event of serious and imminent danger ;
• technical protection requirements for building and civil engineering works;
• prevention for handling, use of screens, operations on electrical installations, work on permanently installed lifting equipment (elevators, goods elevators, etc.);
• medical surveillance;
• obligations to carry out checks, measurements and analyses requested by the labor inspectorate.

⚠️ Warning: The fine is applied as many times as there are workers in the company concerned (Article L4131-4 C.trav.).

The Labor Code also provides for lesser penalties for breaches of certain provisions. Here is a non-exhaustive list:

• a fifth-class fine of up to 1,500 euros for failing to transcribe or update the results of the risk assessment(Article R4741-1trav.);
• a fifth-class fine of up to 1,500 euros for failing to complete or update a worker's exposure monitoring sheet(Article R4741-1-1 C.trav.);
• a fourth-class fine of 135 euros for failure to display the compulsory notices in the workplace(Article R4741-3 C.trav.);
• ...

Finally, failure to comply with certain provisions relating to chemical risks, exposure to asbestos or ionizing radiation is punishable by a fine of 3,750 euros(Article L4741-9 C.trav.).

Methods used by the labor inspectorate to detect infringements

Violations of the Labor Code are recorded by the labor inspectorate. During an inspection, the inspector can check compliance with the general principles of risk prevention, as well as infringements of the general safety obligation(Article L4721-1 C.Trav.).

The labor inspector may ask the employer to carry out checks, measurements and analyses in order to verify the company's compliance(Article L4722-1 C.trav.).

⚠️ Warning: Failure to comply with measures taken by a labor inspector is punishable by one year's imprisonment and a fine of 3,750 euros (Article L4741-3-1 C.trav.).

The inspection officer is also empowered to order the temporary stoppage of work or an activity if a situation of serious and imminent danger is observed, for example in the event of a lack of protection against falls from a height, or the use of work equipment lacking protective devices(Article L4731-1 C.trav.).

Conclusion

Employers must be aware of the occupational risks to which workers are exposed, and implement appropriate preventive measures.

To prevent accidents in the workplace, and thus guard against inexcusable fault, employers must carry out an assessment of occupational risks. It is also essential to master the regulations applicable to the company, to ensure that no infringements of the Labor Code are committed.

To remember:

• Employers are obliged to prevent occupational risks;
• Employers may be held civilly and/or criminally liable if they fail to meet their obligations, or in the event of a workplace accident;
• Recognition of an employer's inexcusable fault enables an accident victim to claim additional compensation;
• The Labour Inspectorate can impose penalties on employers for any breach of the Labour Code, particularly with regard to OHS.

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