Psychosocial risks in the workplace: what are the employer's obligations?

​By Chaouki Gaddada, partner lawyer in charge of employment law at ARST Avocats

Chronic stress, work overload, isolation, internal conflicts, loss of meaning or reporting of harassment: psychosocial risks can weaken employees, disrupt the company and expose the employer to significant legal consequences.

The employer cannot simply intervene when a situation deteriorates. They must assess psychosocial risks, implement appropriate preventive measures, and be able to provide evidence of these measures.

DUERP, workload, role of the CSE, training of managers, handling of alerts: how to build a truly effective prevention policy?

What does the concept of psychosocial risks encompass?

There is no single legal definition of psychosocial risks, generally referred to by the acronym RPS.

According to theNational Institute for Research and Safety, psychosocial risks correspond in particular to work situations in which stress, internal violence or external violence may be present.

They can result from very different factors:

• an excessive or persistently poorly distributed workload;
• unrealistic objectives or contradictory injunctions;
• a lack of autonomy or visibility on assigned tasks;
• deteriorating working relationships;
• a lack of recognition;
• conflicts of values;
• a poorly prepared reorganization;
• professional isolation, particularly when working remotely;
• acts of moral or sexual harassment;
• violence or incivility committed by customers, users or third parties.

Psychosocial risks should therefore not be reduced to a question of individual well-being. They are often linked to work organization, management methods, and company transformations.

They can result in an increase in absenteeism, sick leave, turnover, work accidents, situations of incapacity or employment disputes.

What is the employer's obligation regarding psychosocial risks?

Article L. 4121-1 of the Labour Code requires the employer to take the necessary measures to ensure the safety and protect the physical and mental of workers.

These measures include:

• actions to prevent occupational risks;
• information and training activities;
• the establishment of an appropriate organization and resources.

The employer must also adapt these measures to take into account changing circumstances and improve existing situations.

Article L. 4121-2 of the French Labor Code requires employers to comply with general prevention principles. Specifically, they must avoid risks, assess them when they cannot be avoided, combat them at their source, adapt work to the individual, and plan prevention by taking into account work organization, working conditions, and social relations.

Psychosocial risks therefore fall entirely within theemployer's obligation of prevention and safety.

Is the obligation of safety always an obligation of result?

For several years, the safety obligation was presented as an obligation of result. The employer's liability could then be invoked as soon as any harm to the health or safety of an employee was observed.

Case law has gradually changed this approach.

Since the so-called "Air France" ruling issued by the Court of Cassation on November 25, 2015, the employer can avoid a conviction if it demonstrates that it has effectively taken all the preventive measures provided for in Articles L. 4121-1 and L. 4121-2 of the Labor Code.

This obligation is frequently described as areinforced obligation of means. However, this development does not mean that the demands placed on the employer have diminished.

In practice, the company must be able to prove:

• that she has identified the risks;
• that she evaluated them;
• that it has defined appropriate prevention measures;
• that it has indeed implemented these measures;
• that she adapted them when the work situation changed;
• that she reacted quickly when a risk or difficulty was brought to her attention.

The central question is therefore no longer simply whether damage has occurred. It also involves determining what the employer had specifically put in place before the damage and how they reacted when they became aware of it.

Should psychosocial risks be included in the DUERP?

The single document for the assessment of occupational risks, or DUERP, is one of the main prevention tools in the company.

Whenever the organization of work exposes employees to psychosocial risks, these must be identified and assessed in the DUERP, in the same way as physical, chemical or work equipment-related risks.

A general statement such as "stress" or "psychosocial risks" is insufficient. The assessment must take into account the actual working situations encountered within the company.

The analysis can notably be conducted:

• by establishment, service or profession;
• depending on the categories of employees exposed;
• based on data relating to absences, work accidents, turnover or reports;
• taking into account feedback from the Works Council, the occupational health and safety service and managers;
• during individual or group interviews;
• during a reorganization, merger, relocation or deployment of new tools.

The DUERP (Single Document for Risk Assessment) must be updated:

• at least once a year in companies with at least 11 employees;
• during any major development decision that modifies health, safety or working conditions;
• when new information concerning the assessment of a risk is brought to the employer's attention.

Its successive versions must be kept for at least forty years. This preservation ensures, in particular, the traceability of exposures and the preventive measures implemented.

What action plan should be put in place after the risk assessment?

The DUERP (Single Document for Risk Assessment) should not be considered a mere formality. Risk assessment must lead to concrete actions.

The content of the scheme depends in particular on the size of the company's workforce.

In companies with at least 50 employees, the results of the assessment must lead to the development of an annual program for the prevention of occupational risks and the improvement of working conditions, generally called PAPRIPACT.

This program must specify, in particular:

• the preventive measures envisaged;
• their conditions of execution;
• the resources mobilized;
• the people responsible for their implementation;
• the implementation schedule;
• indicators to monitor its effectiveness.

In companies with fewer than 50 employees, the results of the assessment must lead to a list of prevention and protection actions.

Depending on the company's situation, the measures may include:

• the distribution of the workload;
• the clarification of roles and responsibilities;
• setting realistic goals;
• the organization of rest periods;
• the support provided to frontline managers;
• the prevention of external violence;
• the layout of workstations and workspaces;
• the creation of reporting channels;
• team formation;
• the use of the occupational health and safety service.

Prevention efforts must primarily address the organizational causes of risk. A support unit or occasional training is insufficient if workload overload, conflicting objectives, or managerial difficulties persist.

How to prevent risks related to workload?

Work overload is one of the main factors contributing to psychosocial risks. It can result from understaffing, inappropriate objectives, poor task allocation, or an accumulation of digital demands.

The employer must put in place mechanisms to detect situations of overload early enough.

It may include, in particular:

• regular monitoring of individual and collective workload;
• dedicated interviews with employees;
• warning indicators regarding schedules, absences or delays;
• a procedure for reporting difficulties;
• regular meetings between managers and human resources;
• a review of objectives when the available resources no longer allow them to be achieved.

Particular attention must be paid to employees subject to a fixed-day work agreement. The autonomy they enjoy does not exempt the employer from their obligation to monitor their workload and ensure that rest periods are respected.

On this issue, the company must also ensure the compliance of the collective agreement and the individual fixed-day work agreement. The firm has notably dedicated an analysis to the conditions for the validity of the fixed-day work agreement within the Syntec collective agreement.

Teleworking and hyperconnectivity: what risks need to be prevented?

Teleworking does not reduce the employer's safety obligation. It changes the conditions under which this obligation must be implemented.

The assessment must take into consideration, in particular:

• the isolation of the employee;
• the decrease in informal trade;
• the difficulty in separating professional life from personal life;
• the increase in emails and video conferences;
• the potential lengthening of working days;
• the ergonomics of the workstation;
• the difficulty in identifying the early signs of declining health.

The employer must conduct an annual interview focusing in particular on the teleworker's working conditions and workload. They must also guarantee the effective exercise of the right to disconnect and compliance with minimum rest periods.

The teleworking agreement or charter may stipulate:

• the time slots during which the employee must be reachable;
• periods of non-solicitation;
• the methods of monitoring workload;
• the conditions of contact with the manager and the team;
• the possibility of temporarily returning to the site;
• the procedure to follow in case of isolation or difficulty.

The objective is not to prohibit all messages sent outside of normal working hours, but to prevent employees from being subjected to a permanent obligation to read and respond.

What is the role of managers in preventing psychosocial risks?

Managers play a crucial role in preventing psychosocial risks. They are often the first to be able to identify an employee's workload, isolation, conflict, or change in behavior.

However, they must have the necessary resources to perform this role.

An effective prevention policy notably requires:

• to train managers to identify warning signs;
• to raise their awareness of the rules relating to harassment and discrimination;
• to give them precise instructions in the event of a report;
• to allow them to alert human resources;
• not to impose objectives on them that are incompatible with the resources of their team;
• to evaluate their managerial practices.

The training of managers should not aim to turn them into doctors or psychologists. It should enable them to identify a problem, adopt an appropriate attitude, and quickly transmit information to the relevant people.

How should an employer react to a report?

When an employee reports a situation of harassment, violence, overwork or suffering at work, the employer must react quickly and proportionately.

The first step is to collect and store the available information:

• identity of the persons concerned;
• reported incidents;
• dates and locations;
• emails, messages or documents communicated;
• potential witnesses;
• alleged consequences on work or health.

Depending on the nature and seriousness of the facts, precautionary measures may be necessary to protect the persons concerned without prejudging the conclusions of the investigation.

Conducting an internal investigation is generally essential when the reported facts are likely to constitute harassment, discrimination, violence or harm to health.

The investigation must be conducted impartially, diligently, and confidentially. Its organization notably requires determining:

• the people in charge of the investigation;
• the hearing procedures;
• the list of documents to be examined;
• the conditions under which the declarations will be recorded;
• the investigation timeline;
• the procedures for reporting its conclusions.

Obligations relating to the prevention of harassment and those relating to the handling of reported incidents are closely linked, but legally distinct.

the Court of Cassationrecalled that the employer must be able to justify both the general measures taken to prevent harassment and the immediate measures adopted when informed of facts likely to characterize it.

Furthermore, the data collected during the investigation must be processed in accordance with the rules relating to the protection of personal data.

What role does the CSE play in psychosocial risks?

The social and economic committee contributes to promoting health, safety and the improvement of working conditions in the company.

In particular, it must be involved in the analysis of occupational risks and consulted on the Single Risk Assessment Document (DUERP) and its updates. It can also:

• to conduct inspections;
• to conduct investigations into workplace accidents or occupational diseases;
• to exercise a right to raise an alert;
• to propose preventative actions;
• contribute to the analysis of working conditions;
• to inform the employer of individual or collective situations.

In companies with a health, safety and working conditions committee, the CSSCT can prepare the work of the CSE and further analyze psychosocial risks.

However, the involvement of the Works Council (CSE) does not transfer the responsibility for prevention to employee representatives. The employer remains responsible for risk assessment and the implementation of necessary measures.

What risks does the employer face in the event of insufficient prevention?

Insufficient prevention policies can lead to several types of consequences.

The company may, in particular, face the following challenges:

• a claim for damages for breach of the safety obligation;
• an action based on facts of moral or sexual harassment;
• a request for judicial termination of the employment contract;
• an acknowledgment of the termination;
• contesting a dismissal for incapacity;
• recognition of a work-related accident or occupational disease;
• an action to recognize the employer's inexcusable fault;
• the intervention of the labor inspectorate;
• a lasting disorganization of the teams;
• damage to the company's image and attractiveness.

Criminal liability may also be sought when the circumstances and elements constituting an offence are present, particularly in matters of harassment, unintentional injury or discrimination.

These different grounds for liability do not meet the same conditions. The mere occurrence of damage is therefore not always sufficient to automatically establish the employer's liability. Conversely, the absence of an assessment, concrete measures, or a response to a warning significantly weakens their position.

How can it be proven that the company has fulfilled its prevention obligation?

In the event of a dispute, the company must be able to produce precise, dated and consistent evidence.

It is therefore essential to preserve:

• successive versions of the DUERP;
• prevention programs and action lists;
• the reports of the CSE and the CSSCT;
• training materials and supporting documents;
• communications addressed to employees;
• agreements and charters relating to teleworking and disconnection;
• workload monitoring indicators;
• reporting procedures;
• interview reports;
• the measures adopted following an alert;
• internal investigation reports.

Documentation should not be created only when a dispute arises. It should accompany the prevention policy throughout its implementation.

Five key reflexes to remember

To structure or revise its policy for preventing psychosocial risks, the employer can start with five priority actions:

1. Update the DUERP taking into account the actual work organization and the categories of employees exposed.
2. Define an action plan adapted to the workforce, with responsible parties, a timetable and monitoring indicators.
3. Train managers and human resources to detect difficulties and handle alerts.
4. To organize an internal reporting and investigation system guaranteeing responsiveness, impartiality and confidentiality.
5. Keep evidence of the measures taken, their deployment and their adaptation over time.

Preventing psychosocial risks cannot rely solely on a few documents or isolated actions. It must be integrated into management decisions, reorganization projects, and the company's daily operations.

The employment lawyers at ARST Avocats assist companies in evaluating their prevention measures, updating the DUERP, organizing alert and internal investigation procedures, and managing disputes related to health and working conditions.

Frequently asked questions about psychosocial risks

Do psychosocial risks have to be included in the DUERP?

Yes, as soon as the assessment reveals the existence of psychosocial risks in the company. These must be identified according to the work situations concerned and associated with concrete preventive measures.

Is the employer liable as soon as an employee suffers a health problem?

No, not automatically. The employer's liability depends in particular on the identified risks, the information available to them, and the preventive measures actually implemented. However, the employer must be able to provide proof of this.

Should an investigation be opened after every report?

The response depends on the specificity and seriousness of the reported incidents. In all cases, the employer must conduct a preliminary analysis promptly. A formal investigation is generally required when the incidents are likely to constitute harassment, discrimination, violence, or harm to health.

Is a listening service enough to prevent psychosocial risks?

No. A listening unit can be a useful tool, but it does not replace risk assessment or measures affecting work organization, workload, objectives or managerial practices.

Does teleworking reduce the employer's safety obligation?

No. The safety obligation also applies to teleworkers. The employer must adapt their assessment to the specific risks of remote work, including isolation, overload, over-connectivity, and difficulties disconnecting.

If you are facing a workplace accident issue, please contact us.

Article written by Chaouki Gaddada