1) Reminder of the general system of the right of withdrawal (droit de retrait)
1.1) Concept and definition of serious and imminent danger (danger grave et imminent)
Article L.4131-1 of French Labor Code provides that:
"The worker immediately alerts the employer to any work situation of which he has reasonable grounds to believe that it poses a serious and imminent danger to his life or his health and of any defect which he finds in the protection systems. .
He can withdraw from such a situation.
The employer may not ask the worker who has made use of his right of withdrawal to resume his activity in a work situation where a serious and imminent danger persists, resulting in particular from a defect in the protection system. "
A ministerial circular No. 93-15 of March 25, 1993 specifies the serious danger that it can be characterized when it is likely to lead to death or prolonged permanent or temporary incapacity. With regard to imminent danger, the same circular specifies that any danger likely to occur suddenly within a short time can be described as imminent.
Also, by virtue of their right of withdrawal, all employees have the right to interrupt their work and leave their work station.
For example, the right of withdrawal of 126 SNCF agents could have been legitimately exercised following an attack by controllers and since the attackers had not been arrested. (Cass, soc, October 22, 2008, n ° 07-43740)
Furthermore, the right of withdrawal can also be exercised in the event of mental distress.
For example, trainers at an apprenticeship training center had exercised their right of withdrawal due to increasingly difficult situations due to the behavior of apprentices. They therefore invoked a situation of permanent stress and a refusal to listen and support from management. According to the employer, it was only a reaction following the disciplinary sanction of one of their colleagues.
The Court of Cassation nevertheless held that the situation of mental distress, having been observed by the industrial doctor, constitutes a reasonable reason to believe that this situation presented a serious and imminent danger. (Cass, soc, May 31, 2017, n ° 15-29255)
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Mathilde MERMET-GUYENNET avocat
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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