Serious and imminent danger

The serious and imminent Concept of danger was introduced in Law the labor French for better delimiting the rights and duties of each one in such a possibility

To define the serious and imminent danger

an obviousness which is not so simple to appreciate and implement. It acts of a concept which raises much questions and opens the way with multiple interpretations and appreciations. What is necessary it to take into account:

element a: the gravity of the consequences?
element b: probability of occurrence?
element C: the imminence of this occurrence?

It is advisable to specify and try to objectify the things to define the terms: danger, serious and imminent

What is what a danger?

according to the dictionary of the French Academy, the danger it is:

What threatens or compromises safety, the existence of a person or a thing. ) DANGER N. Mr. XIIe century, dongier. Derived from bottom Latin *domniarium, “capacity”, of domnum for dominus, “lord”. Direction of “being able, domination” is resulting that from “danger”, starting from the expression “estre as a dangier, “being with the capacity, the thank you of somebody”. 1. What constitutes a threat for health, safety, the interests, the existence of somebody. An imminent, inevitable, unforeseen danger. ..... . 2. Situation where such a threat is felt. To endanger, out of danger. To be in danger of death, danger to die. To declare the fatherland in danger. 3. Expr. fam. A public menace, a dangerous person for all the others. This imprudent driver is, at the wheel, a danger public.4. NAVY. Bar, shelf, wreck or any other obstacle which constitute a threat for navigation. To announce the dangers of a master key.

The professionals of the prevention confer at the end " danger" a rather different significance and which they for their use standardized) in particular for the evaluation of the risks: Danger: characteristic intrinsic of a thing being able to create damage: dangers of electricity, the sulphuric acid The danger is distinguished from the risk: the risk results from the meeting of a person and a danger: risk = supervening of the dangerous event X exposure time X many exposed people It risks there because there are a danger and exposed people

what to thus retain? One can synthesize all that while saying that the danger connotes:

an intrinsic characteristic of something constituting a threat

the particular gravity of the consequences

the absence of control and or conscience

The serious danger

The danger term suggests already severe damage The serious adjective accentuates this aspect: ” a danger it is serious, a danger engraves it is worse” As illustration: scale of gravity used for the evaluation of the risks Scale in 4 degrees: Weak Accident without sick leave Light: Lost-time accident but without after-effects Serious Lost-time accident and after-effects very serious Accident invalidating or dead The last two degrees must be reached so that one to speak about serious danger. This corresponds to the position of the Minister for Labor: Definition given in the circular of the Minister for Labor dated March 25th, 1993: a danger engraves “ a danger likely to produce an accident or a disease resulting in death or appearing to have to involve a permanent disability or temporary prolonged”. Beyond the accident risk and of occupational disease, the danger concerning health includes the effects of the harmful effects holding with the work conditions since these harmful effects take an acute character creating an imminent danger. The danger can emanate from a machine, of an environment of work, a manufacturing process. Let us note that:

the accent is put on the extreme gravity of the consequences
the object is extended to the effects on health in all its components not only physical (concept of mental health and globality of the health condition) what still makes the appreciation more delicate

The imminence

According to the dictionary of the French Academy: (1) IMMINENT, - GRAFT adj. XIVe century. Borrowed of Latin imminens, takes part present of imminere, “to rise above; to be imminent; to threaten”. Who threatens to occur very soon. A ruin, a crisis, an imminent war. An imminent danger. By ext. Which is very close being done, to occur. An imminent marriage. Their arrival is imminent. The direction to be allotted to this notion for the appreciation of the rights and duties of each one in the event of serious and imminent danger to work is the following one: According to the Minister for Labor the law “intended to aim at the situations where the risk is suitable for be carried out abruptly and within a short deadline. (circular of March 25th, 1993) For the judges: A work found dangerous in oneself cannot be enough to justify a withdrawal (CA Aix-en-Provence, Nov. 8, 1995). The aggression of a driver of the RATP does not justify the exercise of the right of retirement of a dangereous situation because of another driver working on the same line, since at the date of suspension of its work, the danger was not imminent any more taking into account the separating time, on the one hand, the moment of the aggression (16h50), and on the other hand, the moment of the sick leave (18h30) and that of the installation by the employer of measurements to avoid the supervening of a danger (18h10). The interested party could not in addition prevail himself, to justify his action, owing to the fact that the authors of the aggression perpetrated against one of his/her colleagues not having been stopped yet, they were likely to reiterate their behavior. This argument concerns indeed the concept of risk, which is distinct from the criterion of serious and imminent danger within the meaning of the article L 231-8 of the labor regulation. There did not exist moreover any other circumstance making it possible to think that it was about other thing that of an isolated act, and this when well even he had already done itself before the object of an aggression in the exercise of his community activity. `CA Paris April 26th, 2001, 21st CH., Verneveaux C the RATP It is the proximity of the realization of the damage (and not thus that of the existence of a threat) which must thus be taken into account, the imminence is not only probability, but probability of a supervening within a close time

Rights and duties in the event of serious and imminent danger

a duty of heavy description on the employee
a right of retirement
a prohibition made with the employer ask the employee to resume his work
an obligation to act for the employer
an obligation of investigation and dialog

The description of a DGI is an obligation for the employee

the employee who is informed of a serious and imminent danger, but which abstains from informing the employer or his representative of it, exposes himself to a disciplinary action. Its non-observance is appreciated according to its competences and experiment Indeed if the article L 230-3 CT provides that “falls on each worker to take care”… ” of its safety and its health as well as those of the other people concerned because of its acts or omissions with work “it is however:

provided “of its formation and according to its possibilities” (ibid)
Without transfer of responsibility: ” the provisions of the article L 230-3 do not affect the principle of the responsibility for the employers or chiefs for establishment”

The consequences of the possible non-observance of this obligation are appreciated according to competences and experiment of the employee

Right of retirement

The exercise of the right of retirement is not an obligation The right of retirement envisaged by the article L 231-8 of the labor regulation constitutes for the employee a right and not an obligation (Case plowshare December 9th, 2003, n°2584 F-D, Lahet C Social service childhood - SAR Aquitaine, SAE Knows some limitations fixed by the Law: To be founded on the existence of a serious and imminent danger (see here) Not to create risk for others again: Article L 2318-2 CT ““the faculty opened by the article L 231-8 must be exerted in such a way that it cannot create for others a new situation of serious risk and imminent” But cannot be limited by the employer A clause of rules of procedure subordinating the withdrawal to the existence of an effective danger is contrary with law (EC, Oct. 9, 1987). The effective existence of a serious and imminent danger is not a condition of the right of retirement of the employee. This one is exerted its right validly since it has a reason reasonable to think that such a danger exists. Case plowshare May 10th, 2001 n°1971 F-D, co. Transzvry C Baroudi. The obligation made to the employee make a written declaration subjects the exercise of the right of retirement to a subjection incompatible with the right recognized by law (EC, 4 DEC 1987).

Right to be mistaken

One should not confuse:

the appreciation of the serious and imminent danger
the appreciation of the bona fide of the employee when he calls upon a DGI

“It belongs to the Court of arbitration to rule on the legitimacy of a disciplinary action taken by the employer on the base of an unjustified or abusive exercise of the right of retirement. They appreciate the reasonable character or not fear called upon by the employee. They will be able to thus take account of the age of the employee, his health condition, his qualification or its track records “(plowshare case Oct. 17, 1989). “The effective existence of a serious and imminent danger is not a condition of the right of retirement of the employee. This one is exerted its right validly since it has a reason reasonable to think that such a danger exists. ” Case plowshare May 10th, 2001 n°1971 F-D, co. Transzvry C Baroudi.

Duties of the employer

Prohibition to ask the resumption of work
Prohibition to impose sanctions

except abuse

Obligation to protect the employees
Obligation to inquire

Prohibition to ask the resumption of work.

In the contrary case, the head of undertaking or establishment engages his criminal responsibility: So despite everything there no was accident: endangered of the life or the physical integrity of others, Article the 223-1 “fact of directly exposing others to an immediate risk of dead or wounds likely to involve a mutilation or a permanent infirmity by the violation obviously deliberated on a particular obligation of safety or prudence imposed by the law or the payment is punished one year of imprisonment and 15000 euros fine. ” If there were an accident, manslaughter: Article 221-6 of the Penal code: ” The fact of causing, under the conditions and according to the distinctions envisaged in article 121-3, by awkwardness, imprudence, carelessness, negligence or failure with an obligation of safety or prudence imposed by the law or the payment, the death of others constitutes a punished manslaughter three years of imprisonment and 45000 euros fine. In the event of violation obviously deliberated on a particular obligation of safety or prudence imposed by the law or the payment, the incurred sorrows are increased at five years of imprisonment and 75000 euros of fine. or involuntary injuries: Article 222-19: ” The fact of causing with others, under the conditions and according to the distinctions envisaged in article 121-3, by awkwardness, imprudence, carelessness, negligence or failure with an obligation of safety or prudence imposed by the law or the payment, an total work incapacity during more than three months is punished two years of imprisonment and 30000 euros fine. ” In the event of violation obviously deliberated on a particular obligation of safety or prudence imposed by the law or the payment, the incurred sorrows are increased at three years of imprisonment and 45000 euros of fine. Engage the civil responsibility of the company and his: The inexcusable fault is acquired of right for the employee or the employees who would be victims of an industrial accident or an occupational disease whereas themselves or a member of the CHSCT had announced to the employer the risk which materialized. Article L452-4 Codes social security: “….The author of the inexcusable fault is responsible on his personal inheritance for the consequences of this one (.....) When the accident is due to the inexcusable fault of an employer guaranteed by an insurance for this reason, the CRAM can impose on the employer the additional contribution mentioned with the article L. 242-7.

Prohibition to impose sanctions

Except abuse “An employee “having given up his station without taking the most elementary precautions of safety” can be laid off and the dismissal will be considered to be founded” Case plowshare October 17th, 1989

Obligation to protect the employees

Can one avoid the inevitable one? The text: “The chief of establishment takes measurements and gives the instructions necessary to allow the workers, in the event of serious danger, imminent and inevitable, to stop their activity and to put themselves immediately in safety by immediately leaving the work place” L 231-10 CT In addition to the preceding concepts that appears here of DGI and inevitable This seems to give to the employer a latitude between ordering the evacuation and ordering to the workers to make immediately certain provisions suitable to eliminate the danger This appreciation, very delicate because to take in the urgency, is of its responsibility It seems that the employee can withdraw himself from an order to act to rather only evacuate but the tragic error of appreciation would engage the responsibility for the employer In the event of inevitable danger the employer would have only the choice of the evacuation

obligation to inquire

Texts: gross of foundry! Texts Right of retirement of the employees Article L 231-8 CT The employee announces immediately to the employer or his representative any situation of work of which it has a reason reasonable to think that it presents a serious and imminent danger to its life or its health as any defect which he notes in the protective systems.

The employer or his representative cannot ask the employee to take again his activity in a situation of work where persists a serious and imminent danger resulting for example from a defect of the protective system. L231-8-1 article No sanction, no reserve of wages can be taken against an employee or to a group to paid who withdrew themselves from a situation of work of which they had a reason reasonable to think that it presented a serious and imminent danger for the life or the health of each one of them. The benefit of the inexcusable fault of the employer defined in the article L. 452-1 of the code of the social security is of right for the employee or the employees who would be victims of an industrial accident or an occupational disease whereas themselves or a member of the committee of hygiene, safety and work conditions had announced to the employer the risk which materialized.

Texts Right of alarm of the CHSCT L231-9 article If a staff representative at the committee of hygiene, safety and work condition notes that there exists a cause of serious and imminent danger, in particular via an employee who withdrew himself from the situation of work defined in the article L. 231-8, it warns the employer immediately of it or its representative and he consigns this written opinion under conditions fixed by regulatory way. The employer or his representative is held to proceed at once to an investigation with the member of the committee of hygiene, safety and the work conditions which announced the danger to him and to take the necessary measures to cure it In the event of divergence on the reality of the danger or the way of making it cease, in particular by stoppage of the work, of the machine or the installation, the committee of hygiene, safety and the work conditions is joined together urgently and, in any event, within a time not exceeding twenty-four hours. Moreover, the employer is held to immediately inform the factory inspector and the agent of the service of prevention of the regional case of health insurance, who can attend the meeting of the committee of hygiene, safety and the work conditions. In the absence of agreement between the employer and the majority of the committee of hygiene, safety and the work conditions on the measures to be taken and their conditions for implementation, the factory inspector is seized immediately by the employer or his representative. He implements, if necessary, either the procedure of the article L. 230-5, or that of the article L. 231-5, or that of the article L. 263-1. The Article L231-10 CT: The chief of establishment takes measurements and gives the instructions necessary to allow the workers, in the event of serious danger, imminent and inevitable, to stop their activity and to put themselves in safety by leaving the work place immediately.

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