From September 1st, 2020, wearing a mask in a company becoming compulsory, it will be up to employers to enforce this obligation.
For this, it will be possible for the employer to disseminate information through memos, the posting of instructions or even new provisions in the internal regulations.
As a result, we must ask ourselves whether the fact that an employee refuses to wear a mask is likely to lead to disciplinary proceedings or even dismissal.
1) Reinforced security obligation (obligation de sécurité) of the company
In the first place, the obligation of safety is the responsibility of the employer, who must, under the terms of article L4121-1 of the Labor Code, take "the necessary measures to ensure safety and protect physical and mental health. workers ".
Nevertheless, in the second place, article L4122-1 of the Labor Code provides that “under the conditions provided for in the internal regulations for companies required to draw up one, it is up to each worker to take care, according to his training and according to his possibilities, his health and safety as well as those of other people concerned by his acts or omissions at work ”.
Thus, if the employer has given these safety instructions and the employee does not comply with them, he may be subject to disciplinary sanctions.
2) A dismissal for justified refusal to wear a mask?
Disciplinary sanctions are strictly regulated; the employer must justify a "real and serious cause" to proceed with a dismissal.
Otherwise, he risks legal action for compensation from the employee.
The Court of Cassation had already affirmed on March 23rd, 2005 (n ° 03-42404) that the employee refusing to wear a safety helmet on a site requiring such wearing disregarding the safety rules and could be dismissed for serious misconduct as a result.
Thus, in the case of refusal to wear a mask, this case law could be used in support of a dismissal procedure under different conditions.
First, to constitute a real and serious cause for dismissal, the fault committed must be of a certain seriousness.
The Court of Cassation has already affirmed, in particular in a judgment of July 7, 2016 (n ° 14-26388) that the breach of safety rules relating to goods and people constituted a fault making it impossible to maintain the employee in the company.
However, in order for this serious nature to remain, it should be remembered that the dismissal procedure be initiated within two months from the time when the employer became aware of the said facts.
In addition, the employer will not be able to initiate a disciplinary dismissal procedure if the act has already been penalized.
Thus, an employee who refused to wear a mask and who, for example, was the subject of a written warning of this fact cannot be dismissed for the same fact.
However, it will be different in the case of a repeat offense, if the employee once again refused to wear a mask after a sanction.
In this case, the employer will regain its power of sanction and may initiate a new disciplinary procedure in this regard, up to and including dismissal.
Finally, the principle of proportionality should also be taken into account, in particular with regard to the employee's length of service, his disciplinary history, etc.
If all these elements are taken into account, the dismissal of an employee for refusing to wear a mask in the company could be considered justified.
However, it remains impossible to remove the mask permanently.
In any case, the protocol affirms that for activities which would prove incompatible with the wearing of a mask, the Ministry continues the dialogue with the social partners in order to find solutions.
To read the full Article, please click on the link below.
Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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