What is the employer's responsibility regarding workplace health and safety?

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To ensure the health and safety of workers, the employer must implement numerous occupational risk prevention measures. In the event of a failure or breach of their obligations, the employer may be held civilly and criminally liable.

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

The employer has an obligation to ensure the safety and protect the physical and mental health of their workers and must, to that end, (Article L4121-1 of the Labor Code):

• implement occupational risk prevention actions;
• implement information and training actions;
• implement an appropriate work organization and resources.

In the event of a fault or breach of this safety obligation, the employer's civil and criminal liability may be incurred.

This is an obligation of result, not merely an obligation of means. Indeed, merely implementing prevention measures is not enough to absolve the employer of responsibility: it is the effective outcome of the measures implemented that matters (Cass, civ, social chamber, November 25, 2015, 14-24.444).

In other words, in the event of a workplace accident or occupational disease, even if the employer " did their best », they could be held liable because they failed to prevent the risk from occurring.

Depending on the occupational risks present in their company, the employer is subject to a varying number of preventive measures. Here are some examples of obligations common to all businesses:

• carry out an occupational risk assessment(Article L4121-2 C.trav.) ;
• implement a ventilation system for the company's premises (Article R4222-4 C.trav.) ;
• prevent the fire risk (Article R4216-2 C.Trav.) ;
• install fire signage (Article R4227-13 C.Trav.) and extinguishing equipment (Article R4227-28 C.Trav.) ;
• ...

Civil and criminal liability of the employer: in what cases can they be incurred?

If an employer fails to meet their safety obligation, their civil and criminal liability may be incurred.

Employer's Civil Liability

The employer's civil liability can be incurred whenever a breach of their legal safety obligation has contributed to the occurrence of an accident or an occupational disease.

ℹ Please note : The employer's civil liability can also be sought even before any harm to the worker's physical or mental integrity occurs.

In the event of an accident affecting an employee at the workplace, the employer's liability and the lump-sum compensation for the victim under the AT/MP insurance are automatic.

However, if the employee wishes to obtain additional compensation, they can demonstrate that the work accident or occupational disease resulted from an inexcusable fault of the employer (Article L452-1 of the Social Security Code). This inexcusable fault is established when the employer was or should have been aware of the danger and did not take the necessary measures to remedy it.

Examples: inexcusable fault may notably be established if the employer had not recorded the risk in the single professional risk assessment document. It may also be recognized in cases of absence, inadequacy, or defect in the risk prevention measures implemented (Cass, crim, June 11, 2014, 13-85.601).

⚠️ Warning : The employer's inexcusable fault is legally recognized when the danger had been reported to the employer before the occurrence of the damage (Article L4131-4 Labor Code).

The recognition of inexcusable fault results from an amicable agreement between the employer and the victim employee. However, when no amicable agreement is reached, particularly in case of disagreement on the existence of the inexcusable fault or on the amount of the increase and compensation, it then falls to the social security court to decide (Article L452-4 Social Security Code).

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

The supplementary compensation and the damages claimed by the victim are paid by the primary health insurance fund (CPAM), which then seeks reimbursement from the employer (or their insurance fund) (Article L452-2 CSS).

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

Employer's criminal liability

Criminal liability under the Penal Code

Pursuant to Article 223-1 of the Penal Code, the employer may be prosecuted even in the absence of damage whenever a clearly deliberate violation of a specific duty of care or safety has exposed an employee to « an immediate risk of death or injury likely to result in permanent disfigurement or disability ». The penalty is then one year's imprisonment and a 15,000 euro fine.

In the event of a workplace accident and depending on the severity of the harm suffered by the employee, the employer may face criminal liability for involuntary manslaughter or unintentional injury. They then face a penalty of up to three years' imprisonment and a 45,000 euro fine (Article 222-19 of the Criminal Code and Article 221-6 of the Criminal Code).

ℹ Please note : In the event of a clearly deliberate violation of a specific duty of care or safety, the penalty is increased to:

-five years' imprisonment and a 75,000 euro fine in cases of involuntary manslaughter (Article 221-6 of the Penal Code);

-three years imprisonment and a 45,000 euro fine if the total incapacity for work lasts more than 3 months (Article 222-19 of the Penal Code).

Note that when the employer did not directly cause the damage, their criminal liability can only be incurred in two cases (Article 121-3 of the Penal Code):

• a manifestly deliberate violation of a specific duty of care or safety stipulated by law or regulation;
• a serious fault exposing the worker to a particularly serious risk that they could not have ignored.

Criminal liability under the Labor Code

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

Thus, failure to comply with the following provisions is punishable by a fine of 10,000 euros (Article L4741-1 of the Labor Code):

• right to alert and withdraw;
• worker training ;
• use of workplaces;
• obligations related to work equipment, including its use and maintenance;
• prevention of certain occupational risks (chemical, biological, noise, vibration, radiation risks, etc.);
• prevention of work performed by an external company;
• coordination of prevention in nuclear facilities and provisions in case of serious and imminent danger;
• technical protection requirements during the execution of building and civil engineering works;
• prevention for manual handling, use of display screens, operations on electrical installations, and interventions on permanently installed lifting equipment (lifts, hoists, etc.);
• medical surveillance;
• obligations for verifications, measurements, and analysis requested by the labor inspectorate.

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

Additionally, the Labor Code also provides for less severe penalties for violations of certain provisions. Here is a non-exhaustive list of these:

• a fifth-class fine, i.e., a maximum of 1500 euros, for failing to transcribe or update the results of the risk assessment (Article R4741-1trav.);
• a fifth-class fine, i.e., a maximum of 1500 euros, for failing to complete or update an employee's exposure monitoring sheet (Article R4741-1-1 C.trav.);
• a fourth-class fine, i.e., 135 euros, in case of failure to display mandatory information within the company (Article R4741-3 C.trav.);
• ...

Finally, non-compliance with certain provisions, particularly those related to chemical risk, asbestos exposure, or ionizing radiation, is punishable by a fine of 3750 euros (Article L4741-9 C.trav.)

Procedures for recording violations by the labor inspectorate

Violations of the Labor Code are recorded by the labor inspectorate. Thus, during an inspection, the inspector may, in particular, verify compliance with the general principles of risk prevention as well as violations of the general safety obligation (Article L4721-1 C.Trav.).

The labor inspector may ask the employer for verifications, measurements, and analyses to ensure the company's compliance (Article L4722-1 C.trav.).

⚠️ Warning : Failure to comply with measures taken by the labor inspector is punishable by one year's imprisonment and a fine of 3750 euros (Article L4741-3-1 C.trav.).

The enforcement officer can also order the temporary halt of work or an activity as soon as they identify a situation of serious and imminent danger, for example, in cases of inadequate fall protection or the use of work equipment without protective devices (Article L4731-1 Labor Code).

Conclusion

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

To prevent workplace accidents and thus protect themselves from gross negligence, the employer must conduct an occupational risk assessment.It is also crucial to be familiar with the regulations applicable to the company to ensure no violations of the Labor Code are committed.

Key takeaways:

• Employers have an obligation to prevent occupational risks;
• Should they fail to meet their obligations or in the event of a workplace accident, the employer may face civil and/or criminal liability;
• The recognition of the employer's gross negligence allows the victim of an accident to receive additional compensation and seek damages;
• The labor inspectorate can penalize the employer for any violation of the Labor Code, particularly concerning OHS.

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