Emotional distress, or « anxiety », is defined and legislated differently in each jurisdiction, because it is not an easy concept to understand, from a legal perspective. In France, its introduction into labor law appears to be inseparable from asbestos.
Built on a rationale that the loss of life expectancy of employees exposed to asbestos, during their professional career, should be compensated; the legislature created, by Law n° 98-1194 of 23rd December 1998, a specific scheme, which allows asbestos-affected employees to stop working before the official age of retirement yet still benefit from a particular allocation (ACAATA).
Only employees exposed to asbestos at delineated industrial sites at a defined exposure level were to be eligible for these new benefits.
However, these workers, living with emotional distress or the “anxiety” of contracting serious asbestos exposure disease have claimed compensation from current or former employers.
In several decisions dated May 11, 2010, the French Supreme Court responded favorably to this argument.
This position was counterintuitive in that it is difficult to reconcile the civil law doctrine concept of “prejudice”, which must, in fact, be personal, direct, and above all, certain; with this new, speculative and prospective right.
Nevertheless, employees eligible for the ACAATA can show objective proof of anxiety due to the fact that they have worked in an establishment which is officially seen by public authorities as ripe for development of asbestos exposure disease.
It is, then, the mere fact of having had to work in one of the “suspect” establishments listed which allowed claimants to obtain automatic compensation due to their anxiety.
The logical question arises: should this anxiety “prejudice” be extended to all employees exposed to asbestos, whether or not they had worked in a listed establishment? Why restrict it?
For a long time, the French Supreme Court responded negatively, and rationalized the apparent contradiction.
While the Court’s denial of full extension of the right might, on the surface, appear unfair in that it automatically declares affected employees’ claims unfounded, there is a logical underpinning. The legislature wanted to reserve the benefit of the ACAATA to employees who were the most likely to develop a disease linked with asbestos exposure; only these could claim, in Court, a “compensable” anxiety.
At this stage, the “anxiety prejudice” was nothing more than the “employees eligible to the ACAATA’s damage”; with the historic “listed site” limitation still in place.
The French Supreme Court overturned this line of jurisprudence, on the 5th of April 2019, with a remarkable and seminal decision.
The Court decided each employee who can show their exposure to asbestos can, on the basis of the employer’s safety obligation, win compensation for anxiety, “even though they did not work in an establishment mentioned in (the) article 41 of Law 23rd December 1998”.
The decision is clearly articulated: all employees, effectively exposed to asbestos, whether or not they worked in a listed industrial site, now have a chance to be compensated for anxiety.
Nevertheless, a significant difference remains between ACAATA-eligible employees and those who are not, in terms of chances of success for their claims.
Indeed, non-ACAATA employees must claim damages under French Tort Law; which means compensation is conditional on demonstrating personal damage, an employer’s fault, and a causal link.
However, there are larger and sweeping ramifications in the wider law.
By splitting the inextricable link, the Court of Cassation had hitherto held between the law of 23 December 1998 and “prospective” anxiety damage, using the general workplace safety obligation, there was no longer any justification for limiting the compensation exclusively to asbestos.
Whilst the broadening of the scope of anxiety compensation was probably inevitable in the asbestos context, how will the scope of general expansion of “pre-anxiety” damages be determined?
This sensitive analysis was undertaken by the French Supreme Court in its decisions of 11th September 2019: what would the limiting principle be?
The Court held an employee who demonstrates they have been exposed, in the workplace, to a “harmful or toxic substance” generating a “high risk of developing a serious disease”, may seek compensation, provided their employer did not implement sufficient measures to ensure health and safety.
To determine the notion of “harmful or toxic substance”, which may generate a “serious pathology”, it will be necessary to refer to the various medical studies authoritative in these fields.
The complication will arise from unresolved questions. What about substances In the workplace whose danger is only “suspected” and not clearly established in science?
For instance, are mobile phones’ electromagnetic waves a “substance” within the Supreme Court’s new definition? If yes, is it carcinogenic? Could we establish a causal link between the use of a professional mobile phone and the anxiety of an employee? But what about the employee who also uses a personal mobile phone in their private life?
The fact remains that the Supreme Court has reaffirmed that companies can limit their liability by demonstrating that they have satisfied their safety obligations and have taken adequate measures to protect their employees from exposure to such substances, as contained in articles L.4121-1 and L.4121-2 of Labor Code.
If we analyze this ruling, we would have expected the employer would have a “safe harbor” clause, permitted to limit liability by implementing a precise list of specific measures to implement.
But the Court merely relied on general principles of prevention.
Indeed, in application of articles L.4121-1 and L.4121-2 of Labor Code, the employer must take “measures to prevent professional risks”, “actions of information and training” and put in place “an organization and adapted means”.
Taking again the example of mobile phones, we do not know precisely what measures have to be taken: Should the employer establish precise rules in order to limit the daily time of use of the professional phone? Will it have to go so far as to prohibit use, to limit liability?
When concrete measures are taken, where should we draw the red line, which measures are sufficient?
The question could also be asked concerning “sites with specific pollution”.
What compliance suffices?
By widening the scope of compensation for anxiety prejudice, first to employees confronted with asbestos, then to all those exposed to a “harmful or toxic substance”, the Court of Cassation may have achieved precisely what it ostensibly wished to avoid: to make anxiety prejudice a recurrent claim without lawyers or judges having sufficiently clear guidelines to assess it.
One thing is certain: this extension of legal rights must lead employers to be even more vigilant in preventing occupational risks, which is a central obligation of employers; since its purpose is to protect the health and safety, both physical and mental, of their employees in the workplace.