Regarding the obligation to ensure safety
Pursuant to Article L. 4121-1 of the Labor Code, the employer must take the necessary measures to ensure the safety and protect the physical and mental health of workers. These measures include:
1. Actions to prevent occupational risks, including those mentioned in the article;
2. Information and training actions;
3. The implementation of an appropriate organization and resources.
The employer ensures that these measures are adapted to take account of changing circumstances and to aim for the improvement of existing situations.
Under Article L. 4624-6 of the Labor Code, the employer is required to take into consideration the opinion, indications, or proposals issued by the occupational physician pursuant to Articles L. 4624-2 to L. 4624-4. In the event of a refusal, the employer must notify the worker and the occupational physician in writing of the reasons preventing the implementation of said recommendations.
Article R. 4624-31 of the Labor Code stipulates that as soon as the employer becomes aware of the date on which the work stoppage ends, they must contact the occupational health and prevention service; the service then organizes the return-to-work examination on the day the worker actually resumes work, and no later than eight days following such resumption. Ms. X contends that her employer breached its duty to ensure safety by failing to address her alerts and reports starting in March 2022—citing an email dated December 26, 2023—and by failing to conduct an investigation when she reported incidents of harassment and unequal treatment; she further alleges that the company required her to work between December 8 and December 17, 2023, prior to her return-to-work medical examination on December 18, 2023.
She also maintains that her employer disregarded her health condition by demanding the return of IT equipment while she was on sick leave and unable to travel, and by forbidding her from working remotely between December 8 and December 27, 2023—even threatening her on December 8, 2023, to compel her to abandon remote work. Finally, she argues that the company failed to comply with the occupational physician's recommendations—issued on December 18, 2023, and advising three days of remote work per week given her health status—by refusing the request in an email dated December 20, 2023, despite the intervention of Ms. C, a labor inspector, via an email dated December 19, 2023.
In response, the S.C.P. The firm Jean-François Humbert, Jean-Michel Siméon, Alexis Baudry, Jeanne Piffaut, and Thomas Le Bourg (Notaries) maintains that it received no warning, that the employee's period of work incapacity ended on December 7, 2023, and that the company arranged the return-to-work medical examination as early as December 8, 2023, submitting the notice sent to the employee for the appointment with the occupational health service.
Furthermore, the company explains that it did not breach its safety and prevention obligations by asking the employee to return her laptop during her sick leave.
Regarding the occupational health physician's recommendations, the company maintains that, in response to an email from the Labor Inspectorate, it outlined the reasons for objecting to those recommendations, citing its letter dated January 2, 2024, in which it detailed the employee's shortcomings to the Inspectorate.
It follows from the foregoing that the company scheduled an appointment with the occupational health service as soon as it became aware of the employee's return to work.
However, the company failed to respond to the employee's email of December 26, 2023, complaining about her working conditions; more importantly, it refused to implement the occupational health physician's recommendations issued on December 18, 2023, despite a reminder letter from the Labor Inspectorate and the provisions of Article L. 4624-6 of the Labor Code.
Consequently, the company failed to fulfill its safety and prevention obligations, and Ms. X is awarded the sum of €3,000 on this basis.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
Lille: : 45, Rue Saint Etienne 59000 Lille – Ligne directe +(33) 03.20.57.53.24
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