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July 2018 | Newsletter 11




Suicide occurring as a result of work but outside the workplace constitutes an accident at work that must be proven by the party representing the employee victim. In a Judgement of April 11, 2018 (n° 16/06201 - Lexbase : A7109XKI), the Cour d’Appel de Rouen clarified the regime of the accident at work in the context of an employee’s (Mr. Z) suicide that intervened as a result of his work, although outside his place of work. The widow of the victim (Mrs. Z) asked the company which employed her husband to declare his death as an accident at work. The employer complied while considering that Mr. Z’s suicide was not related to his work. After investigation, the Caisse Primaire d’Assurance Maladie (Sickness Insurance Primary Fund) – CPAM - refused to cover the death of the employee. Mrs. Z unsuccessfully filed an « amicable » appeal against this decision before the CPAM Protest Committee. After another failure, she lodged a contentious appeal before the Tribunal des Affaires de la Sécurité Sociale (Court of Social Security), which was right in judging that the suicide of her husband was indeed an accident at work. The CPAM and the employer of Mr. Z challenged this Judgement in vain before the Court of Appeal of Rouen. The Judges of the Social Chamber recalled the legal definition of an accident at work according to Article L411-1 of the French Code de la Sécurité Sociale before continuing with the presumption of liability regime associated with it. In principle, the CPAM or the employer has to demonstrate the absence of a causal link between the accident and the employee’s working conditions. However, this only applies if the accident in question occurred at the workingplace and on the workingtime. In cases where the accident occurs outside the place and/or time of work, the burden of proof is reversed. Then, it is up to the representative of the employee to demonstrate the causal link mentioned above. The Court of Appeal held that Mrs. Z had succeeded in demonstrating a series of factors that established the professional motives leading her husband to commit suicide. Since it is established that M. Z’s suicide occurred as a result of his work, the qualification of this dramatic event as an accident at work by the Court of Social Security was fully justified.



The dismissal for willful misconduct of the employee does not involve – not any more at least - the loss of pay in lieu of vacation, including for the proceedings running on March 2, 2016, date of which the French Conseil Constitutionnel declared as being unconstitutional the opposite solution that prevailed until then. An employee (Mr. X) had been dismissed for willful misconduct following a physical assault on his employer (Mr. Y). The incident involved a headbutt, 7 stiches and a 15-day temporary interruption of work. Mr. X had challenged an appeal decision rendered by the Fort-de-France Appeal Judges which had dismissed all of his claims aiming to declare his dismissal without real and serious cause. If the materiality of the violence committed was not disputed, the employee challenged the subjective element associated with his act, that is to say, the intention to harm his employer which permitted Justice to hold against him the existence of a willful fault rather than a (less) gross fault. Deprived of any indemnity, Mr. X appealed on reasons identical to those he had invoked on Appeal. In a judgment of March 28, 2018 (n° 16-26013), the Social Chamber of the Cour de cassation confirmed the qualification of the employee’s gesture as a gross negligence while restoring his right to pay in lieu of vacation. On the qualification itself, the trial Judges shad been able to demonstrate the intentional nature of the aggression committed on the basis of evidence proving its voluntary and premeditated nature. On the compensation consequences of this qualification, the trial Judges shad thought fit to apply Article L3141-26 of the French Code du travail (in its wording on November, 13, 2015, the day of the appeal judgment), which excluded in its second paragraph the pay in lieu of vacation in case of a willful fault. This was without counting on the censorship of this provision by the Constitutional Council  (decision rendered on March 2, 2016, n° 2015-523 QPC) while the cassation complaint of Mr. X was still in progress. The declaration of unconstitutionality specified that it was of immediate application, including for the proceedings pending on the day of its publication, so that the Court of Cassation could not do otherwise than restore immediately the right of Mr. X to a pay in lieu of vacation, even though the law applicable at the time of the Appeal decision provided for the opposite solution.


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June 2018 | Newsletter 10




Unauthorized access of the employer to the Facebook account of an employee – The social chamber of the French Cour de cassation estimated in a judgement of December 20, 2017 (n° 16-19.609 F-D) that unauthorized access of the employer to information posted on the Facebook account of an employee, with whom he is opposed in the context of a labour law dispute, constitutes a disproportionate and unfair infringement of his private life.


The professional nature of the mobile phone through which the employer disposed of an authorized access to the employee information does not change anything of it. In this case, the former sought to obtain from the Facebook account of the latter some pieces of evidence to be exposed against him in court. Not having the necessary authorizations himself, the employer ordered another employee, who had individual access to the disputed data from a professional phone, to allow him to access the publications of the said account without the awareness of his author.


The screen shots made by the bailiff at the end of this scheme were found to be inadmissible on the basis of a disproportionate and unfair breach of the employee’s private life. The social chamber upheld the position of the trial judges, rejecting, among other things, the argument of a presumption relating to the professional use, which is of a public nature in the eyes of the employer, of a professional phone.


This decision tends to reinforce the jurisprudence of the first civil chamber. In a judgement of April 10, 2013  (n° 11-19.530 FS-PBI), it confirmed the private nature of the space constituted by a Facebook profile whose access is limited to a ‘very limited’ number of people.



Compensation for home work in the absence of business premises – The employee obliged to perform his work at home in the absence of business premises must be compensated for the subjection he suffers because of this situation, which is left to the sovereign appraisal of the trial judges.


As a reminder, the French Cour de Cassation estimates the obligation to work from his personal home constitutes an abnormal interference by the employer in the private life of the employee, provided that this obligation does not result from his own initiative, from a request made for personal convenience.


Work-related constraints at home, such as the inconvenience associated with the normal exercise of his duties or the space lost as a result of the private arrangement of documents and work tools, entitle him to a compensation calculated on the basis of the endured grievance, in addition to the reimbursement of costs incurred by the domiciliation of the contract (judgement of April 7, 2010, n° 08-44.865 FS-PB).


The judge of cassation holds a similar position in the presence of business premises whose provision of the employee does not prove out to be effective (judgement of December 12, 2012, n° 11-20.502 FS-PB).


Faithful to its previous positions, the social chamber indicated in a judgement of November 8, 2017 (n° 16-18.499 FS-PB) that the possibility for itinerant employees :


  • Of storing objects (orders, folders, etc.) inside a company car;
  • And of using all the technological means at their disposal (telephone, computer, tablet, internet key and printer) from this very same vehicle;

could not be sufficient to reject their claim for compensation for the use of their home for business purposes of administration, planning and storage. In the absence of a work space allowing them to carry out all the diversity of their tasks in good conditions, the employees were well-founded to claim a subjection indemnity from their employer.



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