Author

AdminPrad

Date

4 February 2013

Violence between employees: irrefragable presumption of employer liability

The employer remains solely liable for mental and physical violence committed by an employee against one of the employee’s work colleagues.

This is because the employer is considered as having defaulted on their duty-of-care obligation to achieve results in terms of safety, “even if the employee has taken measures to have such violence cease” and, in the case judged by the Social Division (Chambre Sociale) of the Court of Cassation on 23 January 2013, in spite of the refusal by the labour inspector of the authorisation to dismiss the violent employee… (Cass. Soc., 23/01/2013, n° de pourvoi: 11-18855).

In 2008, the victim, assistant manager of an association, reported to her employer that she was experiencing relational difficulties because of the behaviour of her superior.

The employer had sanctioned the superior by suspending him. When, after a further complaint by the assistant manager, and also after complaints from other employees, the employer asked the labour inspector for authorisation to dismiss the executive in question who was also a union staff representative, the labour inspector refused.

In March 2009, a physical altercation between the assistant manager and her superior led to a declaration of an occupational accident. The dismissal authorisation was finally granted.

Twenty months after the events… the employee nevertheless formally stated that she was considering that her employment contract had been breached, based on the defaulting by her employer on their duty-of-care obligation to achieve results in terms of keeping her safe.

The Court of Cassation ruled in her favour, considering that the breach of contract was established and produced the same effects as a dismissal without any real and serious reason:

“the employer, bound by a duty-of-care obligation to achieve results in terms of safety as regards protecting the health and safety of the workers, defaults on that obligation when an employee is a victim at the workplace of physical or mental violence committed by any one of the employees, even when the employer has taken measures to have the violence cease”.

What about the liability of the labour inspector?

André Ehrmann

Lawyer and Partner

Author

AdminPrad

Date

4 February 2013

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