How are employers responsible for the mental health of their employees ? (2/2)

Since the principle of prevention laid down by the texts is a general one, employees must also adhere to it. This provision was the subject of much debate when the bill was under discussion, as it profoundly changed the modus operandi in relation to safety.

Employers are required to remind these employees that they too are responsible for their own health and safety

As the Minister of Labour pointed out during the debates in the Senate (OJ Senate CR 8 Oct. 1991, 2690), “the fundamental obligation laid down in Article L. 4122-1, the basis of which is both ethical and contractual, recalls that employees are required, in their behaviour and deeds, to observe what is now commonly called in companies the safety mentality. The law reinforces employees’ status as rightholders, but also as actors of prevention within companies: it is necessary to give them and their representatives a more important place, and the purpose of the law is precisely to extend and strengthen employees’ ability to take action on their own. It is about getting everyone to play an active role, because everyone has their own awareness of risks, their causes and how to prevent them. ” As such, case-law accepts the sanctioning of an employee who fails to comply with safety instructions, as well as a repeated refusal to wear protective equipment (Cass. soc., 19 June 2013, No. 12-14.246). An employer who did not discipline this employee would himself be at fault for letting a high-risk situation persist. The same goes for employees who are (too) highly motivated and no longer count their hours, with work time overlapping onto rest time.

It is true that in these situations bosses are sometimes afraid to say anything for fear of discouraging the employee, and disciplining them is even less of an option. Employers are nonetheless required to remind these employees that they too are responsible for their own health and safety. To assess the seriousness of an employee’s faulty behaviour, judges take into account his or her duties, the working environment, and the employee’s personal circumstances. It was therefore held that the dismissal of a manager for psychological harassment was not based on serious misconduct, but on a real and serious cause, since the employee was himself a victim of psychological harassment and the employer, alerted several times about this situation, had not informed him about the difficulty of performing his duties (Cass. soc., 29 Jan. 2013, No. 11-23.944). It was also judged that the dismissal of a team leader, who had not informed his superiors about the behaviour of an employee whom he knew constituted a danger to other workers, was justified (CA Reims, Scheer, 4 Apr. 2007, No. 04/01403).

An immense task for the employer

The task remains immense for the employer, despite what seems to be a more lenient position of the Court of Cassation in recent years. Indeed, until now, the Court has considered that the measures taken by employers to prevent adverse effects on the health of their employees owing to their work did not exonerate them from responsibility. In the case of an employee of an airline company who suffered a panic attack, which he attributed five years later to the attacks of 11 September 2001, the Court of Cassation ruled that “the legal obligation requiring it to take the necessary measures to ensure the safety and protect the physical and mental health of workers is not violated by an employer who can prove that it took all the measures provided for in Articles L. 4121-1 and L. 4121-2 of the Labour Code “(Cass. soc., 25 Nov. 2015, No. 14-24.444). The Court of Cassation extended this logic to situations of psychological harassment (Cass. soc., 1 June 2016, No. 14-19.702).

The explanatory note accompanying the judgement specifies, however, that, “the mere fact that it [the employer] took all immediate measures to put an end to the psychological harassment and that it did in fact put an end to it, a necessary circumstance, is not enough. It is also important that it takes all the preventive measures referred to in Articles L. 4121-1 and L. 4121-2 of the Labour Code, and in particular, that it implements its own information and training actions necessary to prevent the occurrence of acts of psychological harassment”. Employers can thus exonerate themselves from their responsibility in the event of a psychosocial risk, whether the triggering factor is external, as in the case of the airline, or internal to the company, as in the case of psychological harassment. However, they must demonstrate that they previously implemented all relevant measures to prevent these risks, which may concern work organisation, methods and habits, managerial practices and HR tools, taking into account the sensitivity of each employee, which is variable over time. In its 2017 report on psychosocial risks, the INRS highlights six categories of risk factors. Working time and intensity refer to the notions of “psychological requirements” and “efforts” and, more broadly, to the constraints of rhythm, the existence of unrealistic or vague objectives, the requirement of uncontrolled versatility, or contradictory instructions.

Emotional requirements refer to the need to control and shape one’s own emotions

Autonomy at work refers to the ability to be an actor in one’s work, and “job strain”, the imbalance between high demands and a lack of autonomy, is identified as a significant risk. Social relations at work were also studied, notably through “social support”, the “efforts-rewards balance”, and “organisational justice” (equity in the distribution of resources and benefits, in light of efforts made and in relation to what colleagues in a similar position give and receive). They include relations with colleagues or superiors, career prospects, matching the task with the person, work evaluation procedures, and the attention paid to the well-being of employees. Siegrist’s “effort-reward imbalance” model reveals that a combination of high effort and low rewards is accompanied by potentially harmful emotional and physiological responses.

Value conflicts refer to all intrapsychic conflicts resulting from the divergence between what is demanded at work and employees’ professional, social or personal values. The insecurity of the work situation includes both socio-economic insecurity (fear of losing one’s job, non-maintenance of the wage level, precarious employment contract) and the risk of an uncontrolled change in the task and working conditions (restructuring, uncertainty about the future of one’s job). This concerns the very essence of work, the organisation, hierarchical relations, relations between colleagues, working tools, the recognition system and the entire HR system. In addition to stress, dysfunctions can take the form of serious pathologies such as burnout, linked to overactivity, boreout, linked to underactivity, or now brownout, when there is a loss of meaning.

Unilateral control by employers of the suitability of their entire system to all employees all the time remains impossible. The solution lies in developing the quality of the working relationship and in the process of its regulation. A situation reported to us recently is illuminating in this regard. An intern, serving her professional ‘Master 2’ internship in psychology, asks her internship supervisor for permission to switch a day off with a workday so she can spend time with a relative visiting from abroad, whom she sees for a short period twice a year. Her manager, a psychologist, tells her that she will allow the intern to make her own decision, reminding her that she was scheduled to attend an interview with a patient as an observer. She later criticises the intern for choosing to be absent. The intern made a decision based on the actual situation (her presence at the interview was not necessary for the patient, and she could always attend other interviews) while her manager was expecting her to make a decision based on a projected situation. She explained that she wanted to make the intern realise that the professional choice could take precedence over a personal activity. This way of leaving things unsaid created misunderstanding and suffering. From the intern’s point of view, positive feedback was particularly scarce, her reports were corrected fussily and without explanations, there was uncertainty as to the days on which her presence was required, and even as to the length of the internship. In the end, the employment relationship came under the definition of psychological harassment.

Sincere working relationship : pilar of risks prevention

A sincere working relationship is necessary to prevent psychosocial risks and to take into account the mental health of employees. It must permeate the entire managerial chain and cross-functional relationships. Quality of work life can be an effective key. In the note of La Fabrique de l’industrie entitled, “La qualité de vie au travail : un levier de compétitivité [Quality of work life: A Lever for Competitiveness]” (Presse des Mines, 2016), the authors demonstrate, with examples, how the quality of work life, and particularly the quality of professional relations, impacts the economic performance of the company. In the preface to this very comprehensive study, Jean Dominique Senard, President of the Michelin group, observes, in particular, that the authors “ask us to consider the quality of work life not as a set of remedies to the ills generated by our organisations, but as a global approach to preventing these evils from occurring and, beyond that, creating the conditions that allow people to develop to their full capacity. Allowing people to develop, and not ‘be developed’, because placing people in a position to make their own choices is a fundamental prerequisite for respecting human dignity. It is an illusion to believe that it is possible to create a lasting commitment without this.” Investing in QWL, and especially, in the employment relationship, is a productive investment that may be a key response to the employer’s legal responsibility for psychosocial risk.