This is not intended to be a presentation of the zero tolerance programme led by Rudolph Giuliani, the Republican mayor of New York City between 1994 and 2002, or even the lockdown campaign that has engulfed the world since 2020. This is a discussion on the general obligation of prevention which falls on the sagging shoulders of the employer1.
Once upon a time, Renault, a car manufacturer, drafted an article 2.1.4 of its internal regulations for the Sandouville plant in Normandy prohibiting the introduction, distribution or consumption of alcoholic beverages. A priori, this did not concern bottles for disinfecting hands, the wonder product apparently chosen by Louis Pasteur, who had a phobia of nasty hand shaking. This prohibition caused the Haute-Normandie Direccte to fly into a rage. Obviously unwilling to follow the pastoral movement of prohibition, it politely but firmly requested a modification of this wording, which ostensibly infringed on the rights and freedoms of individuals to dispose of liquors. The Administrative Court of Rouen and the Administrative Court of Appeal of Douai followed suit, as the employer did not provide any evidence of the number of alcohol-related accidents.
If there are no accidents, it’s because there is no risk.
Of course. As the truism goes, if he had died the next day, he would have lived even longer.
One wonders whether the Breton administrative courts would adopt the same enthusiasm to lead to the early retirement of the Finistère radars; a headland extending into a body of water.
The Conseil d’Etat was more cautious.
On the contrary, it considered that the ban imposed by carmaker was justified by the nature of the tasks to be carried out and proportionate to the objective sought. In fact, 1,500 of the 2,262 employees were using bodywork tools and machinery and were using chemicals. In addition, all staff had to move around the site regularly and share the same premises2. The risk was therefore high, there was no need to wait for a risk to materialise to justify the draconian rule.
“Freedom, however, does not mean evading taxes, driving the wrong way on the motorway, smoking in restaurants, or refusing a vaccine that protects me as much as it protects others. Freedom means accepting the rules without which the life of the group is sometimes threatened, sometimes made impossible.
Obedience to the law that we have imposed on ourselves is for me – for you too, I imagine – an old memory from senior year – that of Rousseau, of course.”3.
Blessed Jean-Jacques! An old memory from senior year. No doubt a little classmate who was explaining how the naturally good Man became bad. With such reasoning, “We” can do things.
The employee will have no choice but to flee this “dry state” and move.
It is not wrong for him to refuse to toe the line of the head office, pleading on the basis of Article 8 of the European Convention on Human Rights, which proclaims the right of every person to respect for his private and family life, his home and his correspondence.
However, for this other example, joining the village of the Indomitable Gauls in Armorican lands even though the employer was established in those of Ile-de-France was not without consequences.
Indeed, the employer must take the necessary measures to ensure the safety of its staff. At the same time, the employee must also take care of his own health. So obvious that it was useful to write it into the law. There is no doubt that the 450 kilometres separating the home from the workplace did not allow for a balance between family and professional life, especially since the employee was subject to the annual working days system. In this case, the employer must be able to guarantee a reasonable working time and workload. The obligation to preserve health takes precedence over fundamental freedom: health being the condition of freedom4.
The Paris Court of Appeal is not playing games either. On the subject of freedom, there is no “die and retry”. This Safran Aircraft Engines employee did not have to post on LinkedIn a poster displayed on the company’s premises without disregarding the rules of confidentiality. No matter the degree of confidentiality, this freedom of expression craze must be nipped in the bud5. Mind your background for your Instagram selfies when eating a trendy organic vegan sandwich in the break room, it can cost you.
A small shout out also to the illustrious Joseph Meister, the little 9 year old from Alsace, who was cured of rabies even though the research protocol was incomplete6. At that time, the precautionary principle was not yet in place. And how can you talk about the freedom of the patient when death is assured?
Richard Wetzel, Partner
- Article L.4121-1 of the French Labour Code
- Conseil d’Etat, 1st – 4th joint chambers 14 March 2022, 434343
- Statement by Mr Olivier Véran, then Minister for Solidarity and Health, on the bill on management of the health crisis, to the National Assembly on 21 July 2021, the day Alexander the Great was born. Since then, he was promoted on 20 May 2022 to Minister Delegate in charge of relations with Parliament and took the opportunity to declare his love for the National Assembly for having worn out his buttocks on the velvet benches of the Palais Bourbon.
- Versailles Court of Appeal, 10 March 2022 No. 20-02208 DG v. Konica Minolta Business Solutions France
- Paris Court of Appeal, 23 February 2022, No. 19/07192
- Joseph Meister was the first human being to be treated for rabies in 1885 by Dr. Jacques Joseph Grancher, as Louis Pasteur was not a doctor himself and could not inoculate the vaccine.