This alert sums up the sixth parliamentary meeting on well-being at work. Reed Smith was a partner in these meetings for the second successive year. The minister of labour, Madam El Khomri, delivered the opening address. Speakers were mainly deputies, senators, trade union members and doctors. The roundtables were conducted by Alain Ducardonnet, a BFM TV journalist.

This presentation was an opportunity to highlight the skills of our litigation team in the management of pre-litigation and litigation regarding occupational risks.

Well-being at work was the central issue during the sixth parliamentary meeting, held in the presence of Madam El Khomri, minister of labour, in the House of Chemistry in Paris, on 30 March 2016.

There were two sessions during the meeting, as summarised in the attachment. The first session was dedicated to the progress of the national health at work plan 2015 – 2019, and the second session was about innovations at work.

Laura Ferry, counsel in the Reed Smith Paris litigation team, gave a presentation about the regulatory framework of the severity of working conditions and burn-out, and about the judge’s appreciation in case of psychosocial risks.

In the context of the health at work plan for 2016 – 2020, the government has chosen risk prevention for its first strategic focus. This strategic focus includes the severity of working conditions and psychosocial risk prevention.

Protection of employees’ physical health: prevention of hardness The French law (20 January 2014) has implemented a personal account for employee relative to the severity of working conditions prevention (C3P).

There are ten risk factors divided into three categories:

• Professional risk factors due to significant physical constraints: manual handling, painful or tiring physical positions, mechanical vibrations.
• Professional risk factors due to aggressive physical environment: hazardous chemical agents, activity in hyperbaric environment, extreme temperatures, noises mentioned in the labour code.
• Professional risk factors due to certain types of work: night work, work in successive shifts team, repetitive work.

This is a step forward in addressing severity of working conditions. Nevertheless, it has attracted criticism due to its complexity and cost.

Last January, a study was published by the Economic Observation and Research Center for Economic Expansion and Companies Development (Coe-Rexecode), calculating the cost of this measure at 1.7 billion in 2030 and at 6.3 billion in 2060. The study expressed concerns about a negative impact on the competitiveness of firms and on employment.

If this measure excludes the exposure of psychosocial risks to the severity of working conditions factors list, the legislator made an intervention during the debate relative to social dialogue in order to include mental illness in the laws related to occupational diseases.

Protection of employees’ mental health: recognition of mental illnesses as occupational diseases After the introduction of a law (17 August 2015) on social dialogue and employment, mental illnesses can be recognised as occupational diseases as they are included in article L. 461-1 of the French Social Security Code.

The creation of an occupation disease table relating to burn-out was considered. The solution rightly chosen by the legislator is the measure of complementary recognition by a committee of experts (CRRMP); for diseases outside the table. First, the disease must be essentially and directly caused by the usual work of the victim and, second, the disease must lead to a permanent partial disability greater than 25 per cent.

Other solutions are already under discussion in order to facilitate this recognition, notably lowering the permanent partial disability rate or recognising a specific rate for mental illnesses or introducing psychiatrists’ presence in the committee when the declared disease is mental.

The report requested by the Parliament on this topic is especially expected.

The judge handling psychosocial risks Safety obligation relying on employers had been qualified by the French Supreme Court as an obligation to produce a specific result since its judgments on 28 February 2002.

It may be noted that in recent judgments, the Supreme Court appears to have given some flexibility to the safety obligation on employers in the area of psychosocial risks.

• The Supreme Court ruled that the employer had taken all necessary measures to ensure the safety of its employees in the context of an outsourcing project by an affiliate of AREVA group¹.
• In a case concerning an Air France captain present in New York during the September 11 attacks, the Supreme Court considered that measures taken by Air France after the attacks, that is, setting up a medical team all day and night, and directing the employee towards psychiatric and medical consultations which declared him fit to work, were enough to satisfy the security obligation².

This topic therefore remains a priority focus, regularly engaging the legislator and the judge.

Reed Smith expertise The Reed Smith Paris litigation team has in depth expertise in the management of professional risks. The team, headed by Benoît Charot, comprises three partners, one counsel and six associates. It advises its clients on setting up strategies to minimise their liability risks and, where possible, avoid litigation. Please contact the team for further information or if you have any questions.

For more information, please find here the documents in French of the sixth parliamentary meeting on health at work.

1. Cass, Soc., 22 October 2015, n°14.20173.
2. Cass. Soc., 25 November 2015, n°14.24444.

Client Alert 2016-104