Court of Cassation Ruling on Employer's Inexcusable Fault

Extract

[...] The Court of Cassation, in the Eternit judgments of February held that the employer is bound by an obligation towards the employee under their employment contract. This safety obligation was extracted from the contract in order to qualify the inexcusable fault of the employer. While it based the inexcusable fault on a fault of exceptional gravity in a judgment of July it reversed this principle in the judgments of February in which it estimated that the mere occurrence of an accident or occupational disease was sufficient to engage the employer's liability as soon as that employer had or would have had consciousness of the danger to which the employee was exposed and did nothing to prevent it. [...]

[...] He argued in particular that he had put in place, before the accident: measures to prevent the risk of aggression, notably by recruiting a dog handler, by calling on a level 2 security service, that he had regularly organized training sessions on violence management, that the fact that the emergency services were open 24 hours a day was irrelevant since the patient, once taken care of, could be the perpetrator of an aggression and that the deployment of security agents dedicated to protecting the doors closing the care area would not have been able to prevent the accident. Thus, does the aggression of an emergency physician by a patient constitute an inexcusable fault of the employer? The Court of Cassation confirms the judgment rendered by the Court of Appeal. It recalls the provisions relating to the compensation of inexcusable fault (Article L452-1 of the Social Security Code) and the general obligation of the employer's safety (Article L4121-1 and L4121-2 of the Labor Code). [...]

[...] 4121-2 of the Labour Code that the failure to comply with the legal obligation of safety and health protection to which the employer is bound towards the worker has the character of an inexcusable fault when the employer had or should have had consciousness of the danger to which the worker was exposed and did not take the necessary measures to protect him ». It thus renews its basic solution stated, after the plenary assembly decision of October (Civ. 2e Oct n°s 18-26.667 and 18-25.021, and confirmed on 16 November 2023 (Civ. 2and Nov n° 21-20.740). By two judgments of 8 October 2020, the Court of Cassation had modified the definition of the employer's inexcusable fault. This new definition draws the consequences of the evolution of the jurisprudence and notably that concerning the obligation of safety. 1. [...]

[...] B - The evolution of the burden of proof: a presumed inexcusable fault? As Romain BOUVET points out, this decision raises questions about the maintenance of the previous jurisprudence on the proof of inexcusable fault. The proof of inexcusable fault lies with the employee ( [...]

[...] Indeed, once the awareness of the danger is established, it is the employer's responsibility to implement of measures to protect employees. The employer must ensure to verify efficacy of the measures of protection provided. In this regard, the Court of Cassation invites judges of the first instance to make an assessment of the sufficiency and of efficacy of the measures taken to avoid the risk. In this case, The protective measures implemented by the employer were insufficient or ineffective in preventing the risk of aggression to which his personnel was exposed. [...]