Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

The corporate responsibility of undertakings also covers the health, safety and working conditions of their employees. First and foremost, employers are required to take all necessary measures to ensure the safety and protect the health of their employees. In the exercise of their managerial powers, they are prohibited from taking measures whose purpose or effect would be to compromise health and  …

Ensuring better working conditions

The corporate responsibility of undertakings also covers the health, safety and working conditions of their employees. First and foremost, employers are required to take all necessary measures to ensure the safety and protect the health of their employees. In the exercise of their managerial powers, they are prohibited from taking measures whose purpose or effect would be to compromise health and safety . Under Article L. 4121-2 of the Labor Code, the safety obligation requires employers to :

- assess risks that cannot be avoided; during the Covid-19 pandemic, it was held that the mere presence of health and safety ambassadors at the entrance to changing rooms, or the assertion that barrier gestures provide effective protection, did not meet the employer's obligation to assess risks in advance ;

- adapt work to people, particularly with regard to the design of workstations and the choice of work equipment and work and production methods, with a view in particular to limiting monotonous work and work at a fixed pace, and reducing their effects on health;

- take into account the state of the art;

- replace what is dangerous by what is not dangerous or by what is less dangerous;

- plan prevention by integrating, in a coherent whole, technology, work organization, working conditions, social relations and the influence of ambient factors, in particular risks linked to moral harassment and sexual harassment, as well as those linked to sexist behavior;

- take collective protection measures, giving them priority over individual protection measures;

- give appropriate instructions to workers.

Article L. 4121-1 of the Labor Code stipulates that the employer must take the necessary measures to ensure the safety and protect the physical and mental health of workers. These measures take the form of actions to prevent occupational risks, including the work-related risk factors set out in Article L. 4161-1 , as well as information and training initiatives, and the implementation of appropriate organization and resources. The employer must ensure that these measures are adapted to take account of changing circumstances and aim to improve existing situations.

The employer's safety obligation is a results-based duty , the breach of which constitutes an inexcusable fault within the meaning of Article L. 452-1 of the Social Security Code, when the employer is or should have been aware of the danger to which the employee was exposed and failed to take the necessary measures to protect him/her . Thus, an undertaking which has carried out an incomplete assessment of the risks induced by the Covid-19 epidemic, and which is unable to guarantee that the risks specific to this exceptional situation will be adequately controlled, is in breach of its obligation to ensure the health and safety of its employees .

The courts have even adopted a special system of proof for employees who worked in establishments manufacturing materials containing asbestos, exempting them from the requirement to prove both their exposure to asbestos, the employer's fault and their harm, while specifying that the compensation awarded for anxiety-related harm compensates for all psychological disorders, including those linked to upheaval in living conditions. Any employee who can prove exposure to asbestos, giving rise to a high risk of developing a serious pathology, can take action against his or her employer for breach of the latter's safety obligation, even if he or she did not work in one of the establishments manufacturing materials containing asbestos . Employers can only be exonerated from liability if they can prove that they have taken all the measures stipulated in Articles L. 4121-1 and L. 4121-2 of the Labor Code .

Since the addition of Article L. 4121-3-1 to the Labor Code , employers have been required to draw up a “single occupational risk assessment document (DUERP - document d'évaluation des risques professionnels), which lists all the risks to which workers are exposed, and ensures collective traceability of such exposure. The employer transcribes and updates in a single document the results of the assessment of risks to workers” health and safety undertaken in application of Article L. 4121-3. Where the undertaking has fifty or more employees, the results of the assessment culminate in an annual program for the prevention of occupational risks and the improvement of working conditions for undertakings. This program sets out a detailed list of measures to be taken over the coming year, including measures to prevent the effects of exposure to occupational risk factors, as well as, for each measure, its conditions of implementation, result indicators and estimated cost, identifies the undertaking's resources that can be mobilized, and includes a timetable for implementation. For undertakings with fewer than fifty employees, the results of the assessment lead to the definition of actions to prevent risks and protect employees. The list of these actions is recorded in the occupational risk assessment document and its updates.

The single occupational risk assessment document and its earlier versions are kept available for a period of 40 years from the date they were drawn up, for use by current and former employees, staff delegates, and various administrative staff in charge of health and safety at work . The document and its updates are stored electronically on a digital portal set up and administered by a body managed by representative employers' organizations at national and cross-industry level. The portal ensures that the single document is stored and made available in accordance with current legislation and regulations. It safeguards the confidentiality of the data contained in the single document, and restricts access to it by means of a secure authentication procedure reserved for persons and bodies authorized to file and update the document on the portal, and for persons and bodies demonstrating an interest in having access to it.

The document is updated at least once a year in undertakings with at least eleven employees, and also whenever a major decision is taken to amend health and safety conditions or working conditions, within the meaning of Article L. 4612-8, or when additional information relevant to risk assessment is brought to the employer's attention . Each time a risk assessment document is updated, the employer forwards it to the occupational health and safety department to which it belongs.

The Social Chamber of the Court of Cassation has held that drawing up the single risk assessment document, and providing safety training on working conditions, is part of the protection of workers' health and safety, which, in view of the social and economic organization of both the EU and France, is in the public interest . In fact, employers are required to assess the risks to workers' health and safety in their organization and to enter the results in a single document, even if there is no evidence of the chemical substances or preparations used in the undertaking . Without the document for the assessment of occupational risks, the employer will not be  in a position  to carry out operations which may present a risk for employees, and to organize work in such a way as to ensure their safety .

The social and economic committee  must be consulted on the occupational risk assessment document and its updates (Art. L. 4121-3 Labor Code). Previously, there was no legal or regulatory obligation for the employer to consult the Health, Safety and Working Conditions Committee (comité d’hygiène, de sécurité et des conditions de travail - CHSCT) on the document as such . The employer could not therefore be accused of a manifestly unlawful breach of its obligations in terms of assessing workplace risks, since it had attached the single documents for assessing such risks to the presentation of the proposed organization of work sent to the two CHSCT committees, and the latter had criticized them without, however, specifying the epidemic and work-related risks linked to the epidemic and the proposed organization of work that had not been identified or assessed, or the sites or departments that might have been overlooked .

In addition to health and safety, undertakings must ensure that employees are able to defend their rights, in particular by setting up staff representative bodies . It must also organize working hours in such a way as not to endanger the employee. This is not the case when a new organization has the effect of reducing the number of employees providing daytime service, and results in the isolation of the technician in charge of daytime surveillance and maintenance alone, at the start and end of the day, as well as during the summer and when interventions are carried out, as this isolation increases the risks associated with working in the plant . Similarly, before dismissing an employee who, following a work-related illness, has been declared unfit for work by the occupational physician, the employer must try to reorganize her work schedule, or determine whether there is any possibility of staff rotation between the companies belonging to the same franchise .

Gender equality must also be at the heart of the social concerns of undertakings. For example, the Copé-Zimmermann Law  imposed a quota requirement on boards of directors and supervisory boards within public limited companies . Law No 2018-771 of 5 September 2018 for the freedom to choose one's future career made equal pay for women and men a results-based rather than a best-efforts obligation. A professional equality index must, in all undertakings with more than 50 employees, be calculated each year, in order to measure gaps and take corrective action in the event of scores below 75 points, the maximum score being 100. Undertakings failing to achieve the maximum score must make their results public in accordance with Law No 2021-1174 of 24 December 2021.

In addition to the rules set out in the Labor Code, the undertaking's CSR policy must also take into account the recommendations issued by international organizations in the field of labor law. ISO 26000 defines corporate governance as the system by which an organization makes and implements decisions to achieve its objectives. Those decisions automatically have an impact on the company's employees. Employers are thus encouraged to:

- create a system of economic and non-economic incentives in line with corporate social responsibility performance ;

- give under-represented groups a fair chance to occupy positions of responsibility within the organization;

- balance the needs of the organization with those of its stakeholders;

- establish two-way communication processes with its stakeholders, identify areas of agreement and disagreement, and negotiate to resolve any conflicts;

- balance the level of power, responsibility and competence of those who make decisions on behalf of the organization.

In its guidelines, the OECD recommends that undertakings:

1) - respect the right of workers to be represented by trade unions and other legitimate employee organizations and engage, either individually or through employers' associations, in constructive negotiations with such representatives, with a view to reaching agreements on terms and conditions of employment;

- contribute to the effective abolition of child labor;

- contribute to the elimination of all forms of forced or compulsory labor;

- refrain from discriminating against their employees in matters of employment or occupation on grounds such as race, color, sex, religion, political opinion, national extraction or social origin, since selective practices concerning the characteristics of employees can only serve an established public policy which specifically favors greater equality of employment opportunities, or meet the intrinsic requirements of a job;

2)- provide employee representatives with the necessary means to facilitate the development of effective collective agreements;

- provide employee representatives with the information necessary for constructive negotiations on terms and conditions of employment;

- promote consultation and cooperation between employers, employees and their representatives on matters of common interest;

3) to provide employees and their representatives with information enabling them to form an accurate and correct picture of the activity and results of the entity or, where applicable, of the undertaking as a whole;

4) - observe standards of employment and labor relations as favorable as those observed by comparable employers in the host country;

- take the necessary measures to ensure a healthy and safe working environment;

5) in their operations, and to the greatest extent practicable, employ local workers and provide training with a view to improving skill levels, in cooperation with worker representatives and, where appropriate, with the relevant public authorities;

6) where they intend to make changes to their operations which are likely to have a major impact on the livelihood of their employees, in particular in the event of the closure of an entity leading to collective redundancies, to notify their employees' representatives and, where appropriate, the competent national authorities within a reasonable time-limit, and to cooperate with these representatives and authorities so as to minimize any adverse effects. In view of the particular circumstances of each case, it would be desirable for management to notify those concerned before the final decision is taken. Other means may also be used to establish constructive cooperation with a view to mitigating the effects of such decisions;

7) during negotiations conducted in good faith with employee representatives on terms and conditions of employment, or when employees exercise their right to organize, not to threaten to transfer all or part of an operating unit outside the country in question, or to transfer employees from component parts of the undertaking located in other countries, in order to exert an unfair influence on such negotiations or to hinder the exercise of the right to organize;

8) to allow authorized representatives of their employees to conduct negotiations on matters relating to collective bargaining or to relations between workers and employers, and to authorize the parties to enter into consultations on matters of common interest with employers' representatives authorized to take decisions on such matters.

Finally, the International Labor Organization (ILO), in its Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy , calls on undertakings to apply appropriate standards to create a safe and healthy working environment, eliminating forced or compulsory labor and child labor, and promoting equality of opportunity and treatment. It also encourages undertakings to improve working conditions for employees by ensuring that wages, benefits and working conditions offered are no less favorable than those offered by comparable employers in the host country, or if none exist, the best possible wages, benefits and working conditions, taking into account:

- the needs of the workers and their families, having regard to the general level of wages in the country, the cost of living, social security benefits and the living standards of other social groups ;

- economic factors, including the requirements of economic development, productivity and the desirability of achieving and maintaining a high level of employment. When the employer provides workers with essential benefits such as housing, medical care or food, these benefits must be of a good standard.

Cass. soc., 5 March 2008, LawLex202400003263JBJ.

CA Nanterre, 14 April 2020, LawLex202400003211JBJ.

Cass. soc., 4 July 2023, LawLex202400003251JBJ, which adds that, in application of Article 8 of Regulation No 593/2008, the worker for whom France is the country in which or, from which, under the terms of the contract, he/she habitually carries out his/her work, or whose employment contract has the closest links with France, benefits from the protection afforded by this document.

Cass. soc., 8 July 2014, LawLex202400003265JBJ.

CA Rennes, 29 March 2017, LawLex202400003260JBJ.

In enterprises with at least 50 employees, the mission of the CSE is to ensure collective expression of employees, enabling their interests to be taken into account in judgments relating to the undertaking's economic and financial management and development, work organization, professional training and production techniques. The CSE is also responsible for social and cultural activities. It fulfills the role of the former CHSCT in matters of health and safety.

Cass. soc., 12 May 2021, LawLex202400003267JBJ.

Cass. soc., 15 May 2019, LawLex202400003266JBJ.

Cass. soc. 5 March 2008, LawLex202400003263JBJ.

Cass. soc. 20 February 2008, LawLex202400003262JBJ.

- marked physical constraints such as manual handling of loads as defined in Article R. 4541-2, awkward postures defined as forced joint positions, mechanical vibrations as defined in Article R. 4441-1;

- aggressive physical environment marked by hazardous chemical agents as referred to in Articles R. 4412-3 and R. 4412-60, including dusts and fumes; activities performed in hyperbaric environments as referred to in Article R. 4461-1; extreme temperatures; noise as referred to in Article R. 4431-1;

- work rhythms characterized by night work under the conditions laid down in articles L. 3122-2 to L. 3122-5; work in successive alternating shifts; repetitive work characterized by the implementation of work involving the execution of repeated movements, soliciting all or part of the upper limb, at a high frequency and under a forced cadence.

Law No 2011-103 of 27 January 2011, relating to the balanced representation of women and men on boards of directors and supervisory boards, and to professional equality.

Commercial Code, Art. L. 225-18-1 and L. 225-69-1.https://www.ilo.org/international-labour-standards

https://www.ilo.org/ilo-department-sustainable-enterprises-productivity-and-just-transition/areas-work/tripartite-declaration-principles-concerning-multinational-enterprises

CA Rennes, 29 March 2017, LawLex202400003260JBJ, ruling that the employer has an obligation to provide reinforced safety training to its employees engaged on fixed-term contracts assigned to workstations presenting particular risks to their health and safety, so that in the absence of such training, and in the event of an accident at work or work-related illness, the employer is presumed to be inexcusably at fault.

CA Nanterre, 14 April 2020, LawLex202400003211JBJ, which resolved to restrict the activities of the company concerned in order to put an end to the manifestly unlawful disturbance resulting from its failure to comply with its obligation to ensure the health and safety of its employees, until such time as it implements, with the involvement of staff representatives, an assessment of the inherent occupational risks at all its distribution centers, as well as the measures provided for in Article L. 4121-1 of the French Labor Code.

Cass. soc., 11 June 2019, LawLex202400003463JBJ; 19 June 2019, LawLex202400003462JBJ; Cass. ass. plén., 5 April 2019, LawLex202400003461JBJ.

Cass. soc., 19 June 2019, LawLex202400003462JBJ; Cass. ass. plén., 5 April 2019, LawLex202400003461JBJ.

Law No 2021-1018 of 2 August 2021 to reinforce prevention in occupational health, JORF No 0178 of 3 August 2021.

Article R. 4121-4 of the Labor Code stipulates that the DUERP document must be made available to :

- workers and former workers for the versions in force during their period of activity in the undertaking. Disclosure of versions of the DUERP prior to the one in force at the date of the request may be limited to elements relating to the applicant's activity. Workers and former workers may pass on the information provided to the health professionals in charge of their medical follow-up;

- members of the staff delegation of the social and economic committee;

- agents of the prevention departments of social security organizations;

- agents of the professional bodies for health, safety and working conditions mentioned in article L. 4643-1;

- the radiation protection inspectors referred to in Article L. 1333-29 of the French Public Health Code, and the agents referred to in Article L. 1333-30 of the same code, with regard to the results of assessments linked to the exposure of workers to ionizing radiation, for the facilities and activities for which they are respectively responsible.

Compliance

130. Ensuring better working conditions

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130. Ensuring better working conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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