France: Measures To Protect Employees: Ruling On Health And Safety Imposes Partial Closure On Amazon France

Many companies are currently trying to continue or resume operations despite the lockdown measures implemented in France from 17 March 2020.

In summary judgment issued on 14 April 2020, the Nanterre Judicial Court ordered Amazon France Logistique S.A.S. to:

• carry out an assessment of the occupational risks inherent in the covid-19 epidemic in all its warehouses and to implement the resulting prevention, information and training measures in collaboration with staff representatives;

• within 24 hours of notification of the decision, and pending the implementation of these measures, restrict the activity of its warehouses to the sole activities of receiving goods, preparing and dispatching orders for food products, hygiene products and medical products, subject to a penalty payment of EUR 1,000,000 per day of delay and per observed infringement, after this period and for a maximum period of one month.

The Solidaires trade union commenced this legal action following a number of internal disputes (relating to exercise by certain employees of their right to raise the alert for serious and imminent danger, criminal complaints of endangerment of the lives of others, etc.) and with certain labour inspectorates, concerning measures taken by the company to continue (in part) with its activity despite the health crisis.

Analysis of the decision shows that many measures had been taken (reorganisation of work, implementation of ‘barrier' and social distancing measures, cleaning measures, tools for monitoring proven or suspected cases of infection, etc.). However, they were not considered sufficient.

Key elements of the decision

• Firstly, the Court dismissed the Solidaires trade union's argument that the government's prohibition of gatherings, meetings or activities involving more than 100 people simultaneously in closed or open environments ordered by a decree of 23 March 2020 prescribing general measures necessary to deal with the Covid-19 epidemic in the context of the state of health emergency had not been complied with, given that this decree did not impose any restrictions on freedom of enterprise other than those specifically listed.

• The Court considered that the staff representative bodies had not been genuinely involved in the risk assessment carried out by management. In the absence of minutes of the Social and Economic Committee (SEC, Works Council) meetings or minutes of visits and audits carried out to demonstrate this, the Tribunal found that the exchanges of emails and the agendas of SEC meetings showed that the SECs had only been informed of the preventive measures taken, the procedures put in place and changes in the organisation of work afterwards.

• The risk of contamination at the entrance to the premises (access gates) had not been sufficiently assessed and the risk of contamination was not eliminated as the access gates were not left open and distancing measures and possible use of hydroalcoholic gel supplied at the entrance were not sufficient measures.

• The risk of contamination during use of the changing rooms had also not been sufficiently assessed, as the mere presence of health and safety ambassadors at the entrance to the changing rooms did not appear to be sufficient to ensure compliance with these rules, in the absence of clear guidelines as to the maximum number of employees who could simultaneously occupy the premises.

• The company did not demonstrate that it had established prevention plans with all the external companies working on the site in breach of legal requirements.

• The cleaning protocols put in place (cleaning of handling equipment in particular) were not justified with sufficient precision.

• The organisational changes had been made without prior consultation with employee representatives and had not been properly communicated to employees.

• The risk of contamination linked to the chain of handling of the packages, from receipt in the establishment to delivery by the drivers, had not been properly assessed in the required single occupational risk assessment document (‘DUERP').

• Occasional non-compliance with social distancing measures had been noted, leading to closer working relationships between employees.

• Staff training measures were neither sufficient nor appropriate in view of the high risks of contamination linked to the nature of the company's activity.

• The company failed to demonstrate the effectiveness, including over time, of the measures taken, by means of monitoring tools guaranteeing that employees complied with the barrier measures and the safety and contamination risk prevention instructions.

• Finally, the risk assessment did not sufficiently take into account the effects on mental health induced in particular by the constant organisational changes (modification of working hours and breaks, teleworking, etc.), the new work constraints, the sustained monitoring of compliance with the rules on distancing and the legitimate concerns of employees regarding the risk of contamination at all levels of the company.

In conclusion, although the Court acknowledged that the company had carried out an assessment of the risks posed by the Covid-19 virus epidemic, it considered that this assessment was insufficient to guarantee implementation that would ensure appropriate management of the risks specific to this exceptional situation.

Consequently, it considered that Amazon France Logistique had failed to fulfil its obligation to ensure its employee's safety and health. This entitled the Court to order measures to remedy the manifestly unlawful disorder and to prevent imminent harm to the employees.

Amazon has filed an appeal. It also announced on 15 April 2020 that it had temporarily suspended all the activities of its distribution centres in France.

This decision, which is particularly severe, shows the importance of the approach of properly assessing occupational risks in all their dimensions and compliance with the formalistic requirements, so that the company can define and implement appropriate measures, train employees and ensure compliance with safety instructions. It also highlights the importance of social dialogue, including in troubled times when urgency can sometimes lead employers to neglect the role of employee representative bodies.

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