Interview with Mr. Mario DI STEFANO, Attorney at Law - Managing Partner at DSM - Lawyers at the Court
What are the employer's obligations in terms of health and safety, and more specifically during business trips?
In general, every employer has an obligation to ensure the safety and health of employees in all aspects related to work, including the exercise of the employment contract outside the company's premises.1 This obligation is an obligation of result, which means that the employer is obliged to achieve a precise and predetermined result. The employer's obligation of result requires him to take all preventive measures with regard to the employee so that the latter can carry out his professional trips in complete safety.
What must the employer put in place to meet these obligations?
The employer must organize training and set up activities and an internal organization for the prevention of occupational risks. The employer must adopt and update measures taking into account the change of circumstances, as well as aiming at the improvement of existing situations.
The use of telecommunication equipment, such as cell phones, is one of the factors that most affects driving ability. It is "prohibited to drive a vehicle by wearing a device that impedes good perception of traffic noise"..2
The law requires that all equipment be securely mounted in the vehicle or integrated into the driver's helmet. Telephone equipment that includes an earpiece is deemed to meet the requirements of the Highway Traffic Act. The employer is obliged to install in all professional vehicles devices that allow drivers to be attentive to the road and to answer the phone when really necessary, for example by installing a hands-free kit. It is therefore in the employer's interest to communicate to all employees an explanatory note reminding them that it is strictly forbidden to use a cell phone while driving, except in cases of strict necessity, and other than by using the devices provided for this purpose. In this case, the ideal situation is for the employee to park the vehicle to make a phone call. It should also be noted that the reproduction of video content while driving must be strictly prohibited.
Is a commuting accident recognized as an accident at work?
This obligation of result applies in principle only during working time, i.e. when the employee is at the employer's disposal. Thus, the time taken by the employee to travel from his home to his place of work is not considered as working time. However, if an accident occurs during this journey, it can normally be considered an accident at work.3
What is the responsibilitý of the employer?
According to labor law and civil law, the employer is liable for the faults and damages committed by his employees; he bears the risk of the company even in case of negligence of the employee. Nevertheless, in case of gross negligence committed by an employee, the latter is personally liable. Business trips made by employees by car therefore represent a significant risk for the employer. Indeed, case law does not recognize the use of a telephone while driving by an employee as a gross misconduct allowing for dismissal, despite a memorandum posted within the company.4 Thus, it is essential for the employer to put in place all reasonable measures to avoid such accidents.
- This obligation is specified in articles L-311-1, L-312-1, L-312-2 and L-312-8 of the Labor Code
- In application of article 170 bis of the Highway Code
- Article 93 of the Social Security Code
- CA 14.11.2013, no. 38578 of the roll
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