Employees in mission or expatriate: what are the responsibilities of the company face exposure to the risk of attacks?


With regard to the news of recent weeks, many companies wonder about the responsibilities that they incur by exposing, by sending in mission or expatriation, their employees to terrorist acts.

This good question legitimate and which reveals the reality of these risks is not taken lightly by the courts. Whether it's collective terrorist threats, such as the Bataclan and Parisian café terraces November 13, 2015, or acts targeted against companies engaged in international markets (kidnapping, racketeering) security is more than ever a major issue for companies.

The safety of its employees employer requirement

Article L4121-1 of the labour code establishes the framework of the obligation of security the responsibility of employers:

"The employer shall take the necessary measures to ensure the safety and protect the physical and mental health of workers. These measures include:
1 ° the actions of prevention of occupational risks and hardship in the workplace;
2 ° information and training actions;
3 ° putting in place of an organization and appropriate means.
An employer must ensure the adaptation of these measures to take account of the change in circumstances and strive to improve existing situations."

The concept of accident at work

Article L411-1 of the social security code provides that "is regarded as accident at work, regardless of the cause, the accident by the fact or on the occasion of the work any person employed or working in any capacity or in any place whatsoever, for one or several employers or entrepreneurs."

In case of accident at work or occupational disease, the victim is entitled to compensation under the code of social security. The latter, substituting the employer since it is only entitled to the payment of compensation to offset the loss of income. In this case, no action for damages may be filed by the victim (or his entitlement if applicable) against the employer.

Inexcusable fault of the employer and criminal responsibility

Gold is not the same where the inexcusable fault of the employer is proven. In such a hypothesis, the obligation of result of the employer is put forward and his criminal responsibility is then engaged. Inexcusable means that the employer was aware of the risk involved and that it took no steps to ensure the safety of employees and preserve such danger.

The attack in Karachi in 2002 shows as well as the responsibility of employers to expatriate employees or mission may be held liable in case of accident of terrorist act. DCN employees were victims of an attack while travelling, as every day, at their place of work aboard a because of Pakistani Navy. A vehicle driven by a suicide bomber had struck them, leaving 14 dead and 12 wounded. In this drama, recognized by the Court of affairs of social security as a work accident, the employer has been convicted for inexcusable conduct on the ground that the DCN, "taking into account the information it had at the time ought to be aware of the risks of an attack can be perpetrated against its employees". It should be noted that the employees in question were one-time mission of long duration and non-expatriate.

Responsibility extended to the missions of expatriation

Since the decision by the Court of Cassation December 7, 2011, it is the obligation to ensure the safety of employees is extended to acts of everyday life as part of a business trip. That is how the company Sanofi has been convicted following the physical assault of an employee expatriate in Côte d'Ivoire. The employee had taken supported by the Caisse of French from abroad on the basis of voluntary insurance "accidents at work and occupational diseases, had requested that be considered inexcusable conduct by his employer. Its application had been rejected in the first instance. She was then brought before the Labour Court and the employer was convicted on the basis of the common law of contractual liability.

To protect their employees and to prevent exponential legal risk that weighs on him, not to mention the disastrous media consequences of this kind of business, the employer has so any interest to put in place a genuine policy of risk management.

Resort to private security companies, encourage the submission of international labour contracts in statutes other than the french labour law, audits of security, training and information… the tools are not lacking. More the employer will bring elements justifying a real investment concerning the safety of its employees, less legal risk will be high.

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