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The question oh the month / Work Related Stress Pressure, harassment and individual responsabilities

 

 


The high number of recent suicides in certain large French companies, many of them occuring at the place of work, has lead to a vast debate on work related stress. France Telecom comes to mind as such an example with 24 employee suicides in the last 18 months. Although this phenomenon has attracted attention due to its obvious emotional character, a certain relativeness appears necessary ones the subject studied. In order to understand the individual responsabilities of the employer, the staff respresentatives or the employees themselves, we must not only look into the current regulations and the obligations of each companies’ organisations but also the presence and impact of harassment in the business world.


A stressfull environment « French style »
A number of economic, sociological and psychological elements should be studied in order to understand the current debate on work related stress.
In an environment of economic crisis, French companies have frozen hiring and spread out the additionnal work amoungst already existing employees. The managerial politics evolution inside companies over the last twenty years also appears to be one of the explanations for the presence of stress within each corporation. Altough company management was previously aimed at improving production, the present financial considerations are at the core of all decisions. The company projects, intially led for periods of five to ten years are now run as yearly exercices. It is now a business approach focused on statistical results that puts employees to the test concerning not only their individual but also their collective productivity.
Furthermore, certain countries such as Germany, in presence of technological advancements, make redundancy plans in order to replace employees with computerized means of production. On the other hand, a large number of French enterprises prefer to redeploy the employees affected by these advancements into other departments of their firm. Even though the intention of this business approach is laudable, it leads to the deployment of employees in certain posts that neither correspond to their primary qualifications nor their professionnal skills. This inevitably results in the degradation of their work environment and to a feelling of devaluation.
Legal and regulatory advancements concerning work related stress
The debate on work related stress, and more generally on the threats towards employee’s regarding physical and mental integrity, has been the topic of a European agreement signed on Octobre 8th, 2004. The French adaptation was assured on July 2nd, 2008 with the National Interprofessionnal Agreement (NIA) on work related stress. This NIA was the object of an extension on April 23rd, 2009 making its application compulsory starting on May 7th 2009 for all companies belonging to a branch represented by one signatory from the employers’ union.
According to point 3 of the agreement, stress results from a distortion between the perception a person has of the constraints coming from one’s working environment and from the resources one has to face such constraints. This implies a continuous or repeated « pressure » exercised on the employee exceeding one’s capabilities of resistance..
The agreement dated July 2nd, 2008 states that « stress may potentially affect every place of work and every worker, without regard to the size of the company, the domain of activity, the type of contract or the employment relation ». The NIA has the will to fight against work related stress and should lead to the improvement of heath and safety at work. The object of the agreement is to increase the awareness and the understanding of the employers, employees and staff representatives concerning work related stress. An important prevention and information policy on this subject will allow them to identify health problems and therefore will assemble the company’s main actors in order to initiate a constructive social dialogue.
Evolution of the concept of health and safety at work
The concept of health and security at work has been evolving during the last few years. The European commission determined the foundations of the employer’s obligation to assure the security and health of the employees at their work site. It originates from a 1989 directive aimed at « promoting the improvement of health and security at work », adapted in France by a Law dated Decembre 31st, 1991.
Following this adaptation, the French Supreme Court has been very strict against employers when referring to article L.4121-1 of the French Labor code. This article provides that « employers take all necessary measures to protect the workers’ health and security ». The employer has been progressively subject to an obligation of result compared to the obligation of means.
While an obligation of means implies proof by the employee of the employer’s negligence, the obligation of result implies the employer’s automatic responsability as soon as a deficiency regarding health and security is noted. This deficiency could notably consist of the fact that the employer does not take any measures to prevent or improve the workers on site health and security conditions.
The French Supreme Court, in a case dated July 1st, 2003, ruled that psychological disorder may be considered as a work accident. This case concerned an employee that had a nervous breakdown only two days after the announcement of a redeployment decision. The same court, in a ruling dated February 22nd, 2007, considered that a suicide that had not taken place during work hours or had not occured at the place of work but was caused by the work itself, could be identified as a work related accident. Finally, this court, in another ruling, has also established a causality link between the aneurysmal rupture of an employee going to his job and the stress caused by his return to his professionnal activity.
It could be said that the French Supreme Court’s will is to make the employers aware of their responsibilities concerning the pressure put on their employees. According to these precedent rulings, the companies were found financially responsible on the grounds of the employer’s obligation of result. Therefore, the victims of work accidents were compensated.
The role of the company’s committees
The company is composed of many committees that intervene in the processes of identification, prevention, information and treatment of work related stress.
First of all, the employer submited to an increasing obligation of result must avoid all sources of stress within his company. He also must evaluate and reevaluate the risks and take into consideration the individual characteristics of each employee. He then has to control the effective application of the preventive measures. In this sense, the 2008 NIA specifies that once a stress problem is identified, an action aiming at preventing it, eliminating or reducing it, must be taken by the employer. To reiterate, it is the employer’s responsibility to take all appropriate measures in order to improve working conditions.
Since the implementation ot the Law dated January 17th, 2002, the health services at work such as the company physician but also the Occupational Health and Safety Committee (OHSC) must intervene on the workers’ health and security issues. Being that the company physician is committed to medical confidentiality, he can therefore gather anonymously the information concerning the sources of stress within the company. He is considered as an important identification source of the work related stress. On the other hand, the OHSC has the power to demand consultation, to control, analyse, assess and counsel on working conditions. According to article L.4612-8 of the French Labor Code, this organisation must be consulted before every decision regarding important modifications affecting the health and security conditions of the employees, or their general working conditions.
Furthermore, the work council, present in all companies of more than fifty employees, is, according to article L.2323-27 of the French Labor Code « informed and consulted on the general problems concerning the organization of the work, the technology and the employment working conditions ». Working together with the OHSC, those two committees participate in the prevention and treatement of the sources of stress within the company.
Finally, the represented labour unions in the company have the mission to negociate on working conditions in the company. These working conditions having been identified as one of the principal causes of work related stress. The unions may solicit the employer to engage in social dialogue and to negociate on several internal practices that increase the psychological risks in the company.
Harassment and violence at work
These elements are identified as one of the most important sources of work related stress. Therefore, the unions have decided to engage in a specific negociation on these questions within 12 months following the signature of the 2008 NIA. This was agreed upon in order to adapt the European agreement dated April 26th, 2007, on harassment and violence at work.
First of all, it is by a fundamental ruling dated June 21st, 2006, that the French Supreme Court has imposed an obligation « of result concerning the protection of health and safety of workers in the company and notably regarding moral harassment ». Then, with four rulings dated September 24th, 2008, the French Supreme Court decided to rule on the qualification of moral harassment. With these rulings, the Court specified that actions aiming or resulting in a degradation of the working conditions that may affect the employee’s integrity, his physical or mental health, or to compromize his professionnal career may consitute a moral harassment. One of the consequences of this ruling taken by the Court was to make the distinction between suffering at work and harassment less evident.
In consideration of the grave consequences that result from the qualification of sexual or moral harassment, the case law only sanctions the confirmed harassment facts. Nevertheless, through a study of a ruling dated February 10th, 2009, it is possible to see an ease in its interpretation. This case concerned a Human Resources Director (HRD) who, by a repeated and « rough » behaviour towards his co-workers, made his assistant cry in his office. The fear she expressed to her co-workers allowed the French Supreme Court to qualify this behaviour as moral harassment « having for purpose or for effect to deteriorate the plaintif’s working conditions and therefore affect her dignity and health ». The Court of Appeal had « excused » such a behaviour considering that the HRD had high expectations from his co-workers and especially from his assistant.
The French Supreme Court also specified, in a ruling dated November 19th, 2009, that a strict business management policy imposed on all employees may also be qualified as moral harassment that leads to the deterioration of working conditions. This would engage the employer’s responsibility in reference to his health and security obligation of result.
As previously stated, the nature of stress that an employee could suffer from is defined as a result from a distortion between the perception a person has of the constraints coming from one’s working environment and from the resources one has to face such constraints. On the other hand, harassment implies deliberate and precise acts attributable to the employer, a superior or another employee. It is important to remember that the proof of harassment, has to come from the employee. Proving harassment however still remains difficult even if accusing wrongly doesn’t constitute serious misconduct by the plaintiff allowing the employer to justifiy the employee’s dismissal.
Nevertheless, harassment also leads to the degradation of working conditions that the employer, the OHSC, the company physician but also the work council and the unions have the obligation to prevent. Therefore, harassment, as working related stress, is at the core of every debate.
Currently, a greater legal protection is given to French employees through the obligation of result concerning health and security and an easier qualification of harassment. At every level, national or european, health and security but also the improvment of working conditions are considered as main issues. In June, 2008, 21 adaptation reports of the agreement dated octobre 8th, 2004, on work related stress were received from members of the European Union and of the European Economic Community. Although the subjects of work related suicides and degradation of working conditions show a constant and increasing pressure within the professionnal world, we must note that several efforts have been made on the national and the European level.
In conclusion, if we compare the statistics reported by the media, notably concerning the rate of suicides at France Telecom, it is important to note that they are not above the general average for suicides in France. On the other hand, the reasons for the suicides are very worrisome not only because the number of suicides are increasing at the work place, but also because in certain cases, the departing letter left by the troubled employee before their « final act » were aimed directly at the degradation of their working conditions and the feeling of being undervalued within their own company. Certain employees even specified that they were committing suicide only for these reasons. It is fundamental and compulsory that the European, national and judiciary advancements be implimented in order to stop this phenomenon showing a serious malaise within the company.
Alexis Vaudoyer
Robert W. Curley, Jr.
Language consultant of law in English
To go further

 

L’ANI français sur le stress au travail du 2 juillet 2008 : JCP S 2008, 1515. – A. 23 avr. 2009 : JO 6 mai 2009 ; JCP S 2009, act. 260

 

Application de l’accord sur la réduction du stress professionnel : bilan des partenaires sociaux européens: JCP S 2008, act. 672

 

P.-Y. Verkindt, L’ANI du 2 juillet 2008 sur le stress au travail : entre lumière et ombre : JCP S 2008, Aperçu rapide 483

 

Risque suicidaire : enjeux et responsabilité Droit appliqué : Les cahiers du DRH, n° 159, mars 2009

 

P.-Y. Verkindt, Le droit de la santé au travail (à propos de quelques arrêts récents) : JCP S 30 juin 2009.

 

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