“ I hear the reluctance of some mayors, certain business leaders, who fear that their responsibility will be engaged. "Before a Senate inevitably strewn on Monday, May 4, Prime Minister Edouard Philippe dwelled at length on the criminal responsibility of elected officials and business leaders in the face of the coronavirus epidemic.
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" The subject of responsibility for COVID 19 is not a small subject, " he noted in particular, before explaining that he did not intend to " mitigate the responsibility " of decision-makers who will not respond to their obligation of means in the fight against the spread of the virus. He also recalled the availability on 11 May of guides and job sheets " to support the necessary reorganizations within companies in all sectors of activity ".
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"Fauchon Law"
As deconfinement approaches, should employers be afraid of lawsuits from their employees or from clients who have fallen ill? As the Prime Minister recalled, the criminal responsibility regime for decision-makers came from the so-called Fauchon law, which dates from 2000. This law is binding on all decision-makers, private or public, local elected officials or heads of company.
It provides that "natural persons who did not directly cause the damage, but who created or contributed to create the situation which allowed the damage to occur or who did not take the measures to avoid it, are criminally responsible if it is established that they have either manifestly deliberately violated a particular obligation of care or safety provided for by law or regulation, or committed gross misconduct which exposed others to a particular risk gravity that they could not ignore. "
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As soon as the recovery takes place, decision-makers will therefore have “prudence and security” obligations to avoid the spread of covid-19. These obligations will notably involve respecting the security arrangements revealed by the executive on Sunday evening, such as the right safety distance between employees or the management of employee flows. Fact sheets and practical guides will also be available for all sectors of activity from May 11. These measures will have to be updated "according to the evolution of the situation in the company" and "instructions from the public authorities" , explains the Ministry of Labor on its website.
Bailiffs as reinforcement?
" The criminal responsibility of the business owner could be engaged to the extent that it is demonstrated that he has not implemented the measures necessary to protect his employees " , confirms a lawyer specializing in labor law. Despite everything, even if an employee could prove a “ breach of obligation of prudence or security ”, convictions could be quite rare according to this lawyer, because “ it is not simple to prove the direct causality between an contamination of the employee and its origin, while the vectors of contamination are multiple ”.
To protect themselves from criminal prosecution, many business leaders could point out that the health rules relating to covid-19 are well respected within their society by a bailiff. The legal proof.fr website allows you to be put in touch with a bailiff to request certification to attach to your office or to your store window.
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" On this site, all applicants can choose from among 3200 bailiffs in France in a few clicks," explains Patrick Sannino, president of the National Chamber of Commissioners of Justice. Then, a specific report of resumption of activity is made by the bailiff to allow companies to protect themselves by having proof issued by a public and ministerial officer of the implementation of their health obligations. Under certain conditions specified on the site, the company may display a visual signature in its places of business to reassure its customers and employees. "
The first to come forward to obtain the intervention of Legal proof and of the judicial officers were the big surfaces like Carrefour or Casino. According to Patrick Sannino, "many other companies have followed since" .