Contrary to the decision of the Versailles Court of Appeal in the Amazon case, the Lyon Court of Justice, in a case followed by CMS Francis Lefebvre Lyon Avocats, finds that the Economic and Social Committee (ESC) does not have to be consulted on the risk assessment and updating of the single risk assessment document (DUER). It also believes that simply consulting the Central ESC on the deconfinement plan decided at central level is sufficient (interim order, TJ Lyon, 22 June 2020, no. 20/00701, click here to read the order). Analysis.
Pursuant to Articles L.4121-2 and R.4121-1 et seq. of the French Labour Code, the employer is required to assess the risks to the health and safety of workers in its company, to record the results in a single document and to implement appropriate prevention measures.
No legal or regulatory provision in force requires the ESC to intervene either in the risk assessment, which is the employer's responsibility, or in the drafting or the annual updating of the DUER.
However, the Ministry of Labour, in the course of updating its questions and answers on the coronavirus, has always advocated involving - and not consulting -staff representative bodies in the risk assessment and in the definition and implementation of the preventive measures.
However, in a highly publicised case concerning Amazon, the Versailles Court of Appeal (CA Versailles, 24 April 2020 No. 20/011993), held that it was up to the employer to "consult the Central ESC in the context of the risk assessment - including the modification of the DUER - and then the implementation of the appropriate measures, without, however, ignoring the establishment ESCs which, as part of this assessment process, should be consulted and involved in their capacity as employee representatives, it being recalled that the Economic and Social Committee's task is to promote health and safety and the improvement in working conditions.
In this case, three establishment ESCs lodging a complaint against the company for having only consulted the central ESC on the preventive measures and the conditions for the resumption of business, referred the matter to the Court of Justice in summary proceedings so that the employer would be obliged to consult them on the risk assessment, updating of the DUER and the preventive measures decided upon.
Consultation of the Central ESC only with regard to the deconfinement plan decided at the central level is perfectly valid
The establishment's ESCs considered that it was clearly unlawful for the employer to have proceeded with information and consultation on the employee work resumption plan (deconfinement plan) at central level, without prior assessment of the risks inherent to Covid-19 within each of the establishments, in association with the representative bodies at this level.
In order to dismiss the ESCs' application, the Lyon Court of Justice recalls that Article L.2316-1 of the French Labour Code entrusts the company's Central ESC with the duties relating to the general operation of the company and which exceed the limits of the powers of the heads of establishment. The Court also specifies that it is solely consulted on projects decided at company level which do not include adaptation measures specific to one or more establishments.
It concludes that "it is not justified that this information/consultation measure carried out at the level of the central CSE alone should constitute a manifestly unlawful disturbance for the establishment ESCs or for employees, since the conditions for reopening and the gradual resumption of work in the 900 French agencies appear to have been assessed in a conscientious and competent manner by the employer, which declined these conditions of work resumption according to areas of greater or lesser contamination as assessed by the public authorities. For the rest, the measures to be taken to avoid the spread of the disease are the same according to all the agencies in the national territory (…)".
In other words, since the measures relating to the deconfinement plan do not represent specific characteristics per establishment, it is possible for the employer to consult the Central ESC on these measures without having to do the same at the level of the establishment's ESC.
On this point, the position of the interim relief judge differs from that of the Versailles Court of Appeal who, after pointing out that "pursuant to Articles L.2316-1 3° and L.2312-8 4° of the French Labour Code, it appears that the Central ESC alone should have been consulted on the adaptation measures common to the six Amazon France Logistics establishments, as they are significant alterations to health and safety conditions and working conditions. The intervention of this central committee was of particular relevance in a national epidemic context where overall reflection had its place, the establishments being then responsible for adapting it to their specific characteristics". He concluded that "it was up to Amazon to consult with the central ESC in the context of the risk assessment - including the modification of the DUER - then the implementation of the appropriate measures, without ignoring the establishment ESCs, which as part of this assessment process, should be consulted and involved as employee representatives".
Risk assessment and updating of the DUER do not require consultation of the ESC
Adopting an opposite position to that adopted by the Versailles Court of Appeal, the Lyon interim relief judge held that "the Labour Code therefore does not require the ESC to intervene in the risk assessment incumbent on the employer, nor in the development and updating of the DUER. Staff representatives must be involved in the process of implementing the preventive procedures, both with regard to risk assessment and the preparation of preventive actions. The update takes place following the employer's decision, after it has consulted staff representatives on the major development project amending health and safety conditions"
The interim relief judge was aware of the fact that:
- the updating of the DUER was in progress to be completed in the summer as part of its mandatory annual update (C. trav., Art. R.4121-2), in which the employer planned to involve the ad hoc committee created during the coronavirus epidemic, and to inform the ESC;
- the measures taken under the resumption plan could be implemented before the DUER was updated;
- staff representatives had already been involved in the risk assessment and prevention measures as part of the consultation with the Central CSE on the deconfinement plan.
The context in which Amazon found itself helps to explain this difference in solution. In fact, the Versailles Court of Appeal had held that, on the date on which the first judges had ruled:
- “although certain documents had been reviewed at least and without any consultation with the employees' representatives, no steps had been taken by the employer to modify the DUER with regard to psycho-social risks”;
- “the lack of a risk assessment adapted to the context of a pandemic and in consultation with the employees, in particular the members of each establishment's ESC (…)”;
- "the inadequacy of the measures taken by Amazon in violation of the provisions of Articles L.4121-1 et seq. of the French Labour Code.
This constituted a manifestly unlawful disturbance.
Thus, the Versailles Court of Appeal appears to have sanctioned the total absence of any consultation of the ESC on the project to make significant adjustments to working conditions, more than an alleged legal obligation to consult the ESC on the risk assessment and on the updating of the DUER.
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