Mario DI STEFANO, Avocat à la Cour and head of the firm’s employment law department, responded to a few questions from eSST, a consulting firm, in the context of their new campaign on the “telephone at the wheel, danger around the corner”.

 

eSST: What are an employer’s obligations in terms of health and safety, and more specifically during business travel?

Mario DI STEFANO: Generally, all employers have the obligation to ensure the safety and health of employees in all aspect linked to the job, including the exercise of an employment contract off of the company’s premises.[1]

This obligation is a performance obligation (obligation de résultat). That is, an employer is required to attain a specific and determined result in advance. The employer’s performance obligation forces the employer to take all preventive measures with regard to the employee so that he or she can go on business travel in complete safety.

eSST: What should an employer put in place to comply with those obligations?

MDS: An employer should organise training sessions and set up activities and internal organisation for the prevention of work-related risks. An employer must adopt and update measures taking into account changes in circumstances, as well as aim to improve existing situations. The use of telecommunications equipment, such as mobile telephones, is one of the factors that most affects one’s ability to drive.

It is “prohibited to drive a vehicle while holding a device that impedes proper perception of traffic sounds”.[2]

The law requires that any equipment be solidly attached in the vehicle or incorporated into the driver’s safety helmet. Telephonic equipment with a headset/earpiece is deemed to satisfy the Highway Code’s requirements. An employer is obligated to install in all professional vehicles devices enabling the drivers to be both attentive to the road and able to answer the telephone in case of real necessity by, for example, installing a hands-free kit. Additionally, it is in the employer’s interest to transmit to all employees an explanatory memorandum reminding them that it is strictly prohibited to use a mobile phone while driving, unless strictly necessary, and other than using the devices provided for such use. In that case, the ideal scenario would be for the employee to park the car to make a phone call. It should also be noted that the playback of video content while driving should be strictly prohibited.

eSST: Is a commuting accident recognized as a workplace accident?

MDS: In principle, the performance obligation only applies during work time. That is, when the employee is at the employer’s disposal. Thus, the time an employee takes to go from home to the workplace is not considered work time. However, should an accident occur during the commute, it can usually be considered a workplace accident.[3]

eSST: What is an employer’s liability?

MDS: Pursuant to employment law and civil law, an employer’s liability is triggered for violations and damages committed by the employer’s employees; the employer bears the risk of the business even in case of the employee’s negligence. Nonetheless, in case of gross misconduct (faute lourde) committed by an employee, the latter shall be held personally liable. Employee business travel by car thus represents a non-negligible risk for the employer. As a matter of fact, case law does not recognize an employee’s use of a telephone at the wheel as gross misconduct for which the employee could be fired, despite the fact that a memorandum explaining that is posted at the business.[4] Thus, it is essential for an employer to put in place all measures reasonably possible to avoid such accidents.

 

Download and discover eSST’s campaign on the prevention, Workplace Health and Safety, and more particularly on using a telephone while at the wheel by clicking here.

[1] This obligation is specified in Articles L-311-1, L-312-1, L-312-2 et L312-8 of the Labor Code

[2] In application of Article 170 bis of the Highway Code

[3] Article 93 of the Social Security Code

[4] CA 14.11.2013, docket n°38578