How are employers responsible for the mental health of their employees ? (1/2)

10 November 2017

Employers must take into account the effects of work on the mental health of their employees. Their responsibility is extensive but not systematic. Prevention is complex and based on a systemic approach that shows that investing in quality of work life is an appropriate response.

Employers’ responsibility for the mental health of their employees arose as a result of the construction of their responsibility for physical health. To understand the content of this, and to try to understand the perspectives, one must look at history.
The concept of workplace safety was introduced into our regulations by Law No. 76-1106 of 6 December 1976, more than forty years ago. It requires that prevention be taken into account in the design of occupations, work areas and tools, and introduces the principle of practical, appropriate training in safety for all workers. Law No. 82-1097 of 23 December 1982 established the Committee on Health, Safety and Working Conditions, recognised the right of withdrawal, and enshrined the principle that safety and improving working conditions are the concern of everyone within the company.

European Directive EC 89/391 of 12 June 1989 imposed a new philosophy which is the basis of the right of prevention. It clearly states that the employer’s responsibility is not limited to following the regulations, but establishes a general principle of prevention. The focus is now on anticipating risks and prevention actions, whether provided for or not by the texts, including in the design and organisation of work. Following up on this, the law of 31 December 1991 makes it mandatory to assess risks throughout the entire company. The formalisation of the protection of employees’ mental health goes back some fifteen years. It was introduced into our regulations by the Social Modernisation Law of 17 January 2002. Thus, Article L 4121-1 of the Labour Code specifies, “the employer takes the necessary measures to ensure the safety and protect the physical and mental health of workers”. This law was published in the context of the “asbestos” rulings of 28 February 2002, in which the Court of Cassation specified, “under the contract of employment binding them to their employees, employers are subject to a specific-result safety obligation, (…) the breach of this obligation constitutes an inexcusable fault if the employer was or ought to have been aware of the danger to which the employee was exposed and did not take the necessary measures to preserve it”.

An obligation with regard to the mental health

Thus, in 2002, employers were placed under an obligation to achieve a specific result with regard to the mental health of their employees. This obligation is all the stronger in that case-law considers that the employer’s liability, up to inexcusable fault, can be incurred in connection with events occurring outside the time and place of work, or even during a period in which the employment contract is suspended. So, in a judgement of 2007, the Court of Cassation recognised an occupational accident in relation to an attempted suicide that occurred while the employee, who suffered from anxiety and depression, was on sick leave: “An accident that occurs at a time when the employee is no longer under the subordination of the employer is an occupational accident if the employee establishes that it occurred because of the work” (Cass. 2e civ., 22 févr. 2007, no 05-13.771, Bull. civ. II, no 54, JSL, no 208-1).

Some judgements suggest that the employer is responsible in all circumstances, which resulted in a message of discouragement from some companies, considering themselves to be systematically accused. Indeed, in relation to psychological harassment, it has been ruled that the absence of fault on the part of employers did not absolve them of responsibility (Cas. Soc., 21 June 2006, No. 05-43.914). In this association, following a report of the labour inspectorate calling into question the conduct of the manager, the latter was relieved of managerial responsibilities in the weeks that followed, and then very quickly dismissed for misconduct. The Court ruled that the manager was personally responsible but, although finding no fault on the part of the association, the judges ruled that it too was responsible, and ordered it to remedy the injury suffered by the employees. The employer is not automatically responsible, however, and social partners, like the courts, are pragmatic.

The National Inter-Trade Agreement : focus on means of prevention

The European Framework Agreement of 8 October 2004 on Work-Related Stress has been transposed in France by the National Inter-Trade Agreement of 2 July 2008, which focuses on means of prevention, extended in 2009 (Ministerial Order of 23 April 2009, Official Gazette 6 May 7632). After noting that, “Stress can potentially affect any place of work and any worker, regardless of the size of the company, the field of activity, the type of contract or employment relationship,” the social partners observe that, “different individuals may react differently to similar situations and the same individual may, at different times in his or her life, react differently to similar situations”. The same agreement states that “all manifestations of stress at work should not be considered work-related stress”. Employers are not always to blame for the existence of the psychosocial risk that they have to manage. Concerning occupational stress, the 2004 agreement draws attention to its varied causes : “Work-related stress can be caused by various factors such as the content and organisation of work, the work environment, bad communication, and so on”.

In an interview published on 10 September 2010 by l’Express Emploi, Jacques Fradin, Head of the Institute of Environmental Medicine, emphasised bio-compatibility, the compatibility of the job with human functioning. An organisation can generate psychosocial risks by design, its consequences or because of its lack of precision. In the “SNECMA” judgement, the Court of Cassation ruled that an organisational system was capable of compromising the health and safety of workers and that its implementation should therefore be suspended (Cass. soc., 5 March 2008 no. 06-45.888). The judges deemed that the increase in the number of nights and week-ends worked, as well as working alone, was likely to undermine the health and safety of maintenance and surveillance team workers, and in that respect, justified the suspension of the implementation of the new organisation. In that judgement, the Court found it necessary to recall that, “employers are subject, in respect of their staff, to a specific-result safety obligation which requires them to take the necessary measures to ensure worker safety and health; they may not, in the exercise of their power of management, take measures whose purpose or effect would compromise the health and safety of workers”.

An organisation can be a psychosocial risk factor

This prohibition covers both measures concerning the physical health of workers and their mental health. At any time, therefore, an organisation can be a psychosocial risk factor, which can vary depending on the individual and on a moment in the life of every individual. Managerial methods can also be called into question. In this association, the employee criticised the manager for his management method (instructions via tables, direct management of teams regardless of the hierarchy scale, non-communication of and/or non-compliance with schedules). The other employees were better able to cope with these methods, and the employer explained that the behaviour in question was not perverse, but rather a managerial style that could not be a cause of psychological harassment.

The Court of Cassation found, on the contrary, that, “(…) psychological harassment can take the form of management methods implemented by a superior when they manifest themselves for a specific employee by repeated acts whose purpose or effect ‘leads to a deterioration in working conditions which may affect the employee’s rights and dignity, adversely affect the employee’s physical or mental health or jeopardise the employee’s professional future …’ (Cass. soc., 10 Nov. 2009, no. 07-45.321, confirmed by Cass. soc., 22 Oct. 2014). The risk can also stem from human resources management tools and, in some cases, from a pay system. Indeed, the Court of Cassation deemed a bonus to be unlawful, where the eligibility criteria led employees to take risks (Cass. soc., 15 Oct. 2014, No. 12-29.235). This was a bonus paid to couriers based on the distance traveled and the time taken by the person concerned to make the delivery. True, the judges relied on Article 14 of Annexe 1 of the Collective Bargaining Agreement for Road Transport and Auxiliary Transport Activities, which prohibits remuneration clauses that compromise safety, notably by direct or indirect incitement to exceed the duration of work or authorised driving time, but the same reasoning can be applied on the basis of the general principle of prevention. The employer must therefore examine work organisation, methods and customs, as well as managerial practices and HR tools to ensure they do not lead to suffering at work. This must be done for each employee since, as the 2004 European agreement specifies, suffering is subjective, and it must be done regularly, since the same individual’s reaction to the same situation may vary with time. The task seems enormous.

The employer is not alone in the supervisory task

The employer is not alone in this supervisory task. He is assisted by the occupational health services, which, however, since the so-called “work” law, have less opportunity to ensure employees’ health. The employer must therefore be particularly sensitive to the more or less readable signals of these services. Employees themselves are required to play a part. The employee’s safety obligation stems from the Law of 31 December 1991, which transposes the European directives on health and safety at work, and in particular, the above-mentioned Framework Directive of 12 June 1989. Article 131 of that Directive lays down an obligation hitherto largely ignored in the French conception, stating that, “It shall be the responsibility of each worker to take care as far as possible of his own safety and health and that of other persons affected by his acts or omissions at work in accordance with his training and the instructions given by his employer”.

Article L. 4122-1 of the Labour Code is very similar in wording, and refers to the règlement intérieur (internal regulations of the establishment), but it is generally accepted by doctrine that these provisions also apply in companies with fewer than 10 employees. This obligation is, however, not a new one in French law, since it derives from the very essence of the employment contract. In line with the obligation of employers to protect their employees, there is a corresponding obligation on employees to abide by the regulatory provisions as regards safety, within the limits of their professional competence.

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