The French Supreme Court ruled in 2010 that workers who meet the conditions for benefiting from the early retirement scheme for asbestos workers (reserved for certain companies listed by ministerial decision), and who find themselves ‘by the fact of the employer in a situation of permanent concern regarding the risk of asbestos-related illness being declared at any time’, may claim compensation for the anxiety damage they have suffered. This case law allows these workers to receive damages without having to demonstrate the reality of the anxiety felt. Anxiety is defined as ‘a situation of permanent concern about the risk of a disease being declared at any time’. This anxiety is presumed to be due to exposure to asbestos in one of the companies listed by ministerial decision, during the period when asbestos or materials containing asbestos were manufactured or treated there.
However, many employees who do not meet the conditions for benefiting from the early retirement scheme for asbestos workers may have been exposed to asbestos dust inhalation under conditions likely to seriously compromise their health. The Court of Cassation therefore decided in April 2019 that the employer of an individual who could prove exposure to asbestos, generating a high risk of developing a serious pathology, could be liable. In this case, no presumption applies solely because of exposure to asbestos: the employee must demonstrate the damage he or she has personally suffered as a result of exposure to asbestos. The employee must demonstrate that the anxiety is the consequence of a failure by the employer to meet its safety obligations. The employer is not liable if it can demonstrate it took all the preventive measures prescribed by the French Labour Code: in this case, the anxiety suffered by the employee will not be directly attributable to the employer and the anxiety damage will not be compensable.
In a September 2019 decision, handed down in cases involving more than 700 coal miners, the French Supreme Court extended this solution to other toxic substances: according to the Court’s decision, an employee who can prove exposure to a harmful or toxic substance generating a high risk of developing a serious pathology and personal anxiety damage resulting from this exposure, can take action against his employer. In this case, the coal miners considered that the preventive measures taken by their employer (such as watering system and masks) were insufficient to prevent the risks associated with dust inhalation in the mine.
This decision raises many questions – for the moment without any definitive answer. These include: how will an employee demonstrate that there is a high risk for him or her to develop a serious pathology? What constitutes a high risk: is it a lethal one?