All France based employers have a duty to ensure the protection of the health and safety of their workforce,but to which extent ?
The most powerful trade union in the company in France decided to file a claim before the Emergency division of the Civil tribunal of Nanterre, requesting that Amazon shuts down its activities in the warehouses since over 100 employees were required to work in a confined environment.
Prior to the claim, employees had warned that they would use their “withdrawal right”1, while others raised alerts on the existence of a “serious and imminent danger” in the workplace. Amongst the different grievances were the sudden increase of temporary workers due to the outbreak of orders online, subsequent change in the organization at work and the company’s failure to maintain social distancing between employees and the total absence of hydro-alcoholic gel on several sites.
Earlier in April, the Labor Inspection ordered that Amazon take all necessary measures to put an end to the situation in at least 5 out of its 6 French sites, to no avail.
On its part, the Company considered that it did not sit idly by since the beginning of the pandemic but took positive actions to protect the workforce, such as: temperature control, distribution of more than 1,5 million masks, over 127,000 packs of cleaning wipes, more than 27,000 liters of gel and consultation of security and health experts, etc.
In a ruling dated April 14, 2020, the Tribunal did not go as far as ordering the closing of the warehouses but nonetheless ordered that Amazon:
- limits its activities to the selling of goods deemed “essential” (i.e., food, health and hygienic related products) for one month as of April 15;
- proceeds to a clear assessment of the sanitary risks related to the work in the warehouses, with the assistance of the staff representatives.
According to the Tribunal, Amazon failed to take all necessary measures to protect the health and safety of its employees. Furthermore, the company did not provide records of minutes of the social economic committee of the company that could have at least shown that the required obligation to inform and consult staff representatives on the assessment of the risks had been carried out, as prescribed by law.
Should Amazon fail to comply with the Tribunal’s decision, it would be liable to the payment of a EUR 1 million-fine per day of delay and per offence.
Amazon appealed the decision.
Alongside this appeal, Amazon went one step further and announced on April 15 the closing of all its warehouses and production sites in France as of April 16 and for at least 5 days.
In the meantime, the company had also been resorting to partial activity for all employees, a measure that unions had been calling for since the beginning of the crisis.
On April 24, 2020, the Court of Appeal of Versailles upheld the decision of the Nanterre tribunal but removed the limitation to only “essential” goods to include the following categories of products: high-tech, IT, office supply, animals, health and body care, nutrition, parapharmaceutical, grocery, drinks and cleaning.
Would Amazon sell a product that does not belong to any of the above-mentioned categories, it would still be liable to the payment of a fine amounting to EUR 100,000 per offence vs. EUR 1 million ordered by the Nanterre Tribunal.
To avoid any risk, Amazon has decided to maintain the shutting down of its warehouses, at least until April 29, 2020.
While these decisions have been widely covered in the media, the “Amazon” case is not an isolated one and other French tribunals have recently rendered similar rulings. For example, the Emergency division of the Civil tribunal of Lille has held on April 3, 2020 that specific provisions of the French Labor code on biological risks (i.e. the threat of disease transmission by micro-organisms which include viruses) should also apply to an association providing assistance at home to seniors
For companies that cannot allow remote working or resort to partial activity, French tribunals currently tend to impose compliance with stricter sanitary measures.
The main conclusion stemming from these decisions is that employers currently maintaining their activity should :
- consult with employees and employees’ representative bodies (if any) regarding new risks assessment, and changes to the organization of work,
- adapt their risks assessment document to ensure the utmost protection of their workforce,
- duly implement health and safety preventive and protective measures, and
- keep employees informed.
It should be noted that this ruling was issued on the ground of the employer’s health and safety duties and goes beyond the sole confinement period which, as of the publication of this alert, should end on May 11, 2020. When resuming their activity whilst the Covid-19 crisis has not yet ended, employers should take extra care to comply with the above-mentioned duties.
1When they feel that the carrying out of their professional activity would threatened their health and safety, French employees have a right to “withdraw” and stop working until the situation is deemed safe again.