Inexcusable fault of the employer: when a criminal conviction binds the civil court

Imagine for a moment. You are in Riom, your child works in a small joinery company. One day, an accident occurs, and he dies. The criminal court convicts the employer for involuntary homicide. Then, you bring civil proceedings to obtain recognition of the employer's inexcusable fault, which would entitle you to an increased pension and damages. But the employer argues that he was not aware of the danger. Can he still contest this, having been found guilty in criminal proceedings? This was the question put to the French Supreme Court on 11 October 2018.

The answer is clear: no. When an employer has been finally convicted of involuntary homicide committed in the course of work, the civil court, hearing a claim for recognition of inexcusable fault, must consider that the employer was aware of the danger and did not take the necessary measures to protect the employee. The criminal decision is binding on the civil court. This decision, rendered by the French Supreme Court (Social Chamber), reaffirms a fundamental principle: the authority of res judicata in criminal matters over civil matters. For the families of deceased employees, this is a major advance. For employers, it is a stark reminder: a criminal conviction can have serious civil consequences.

In this article, we will dissect this decision, understand its reasoning, and see what it changes concretely for you, whether you are an employer, an employee, or a dependant. And we will see how to avoid finding yourself in such a situation.

The facts: a story like many that happen every day

Mickaël, a worker in a company in Strasbourg, dies at his workplace. The exact circumstances of the accident are tragic. The employer is criminally prosecuted for involuntary homicide. By judgment of 1 July 2005, the Strasbourg Criminal Court finds him guilty. This judgment becomes final, no appeal is lodged or it is upheld on appeal. But the story does not end there.

In parallel, the Strasbourg primary health insurance fund (CPAM) covers the accident under occupational legislation. Mickaël's dependants (his relatives) then decide to bring proceedings before the social security court (TASS) to have the employer's inexcusable fault recognised. They seek an increase in the pension paid by the CPAM and additional damages.

Before the TASS, the employer tries to resist. He argues that he was not aware of the danger to which Mickaël was exposed. According to him, the criminal fault (involuntary homicide) is not sufficient to characterise inexcusable fault, because the latter requires that the employer was aware of the danger and did not take the necessary measures. But the TASS, and then the Court of Appeal, rule against him. The employer appeals to the Supreme Court.

The French Supreme Court, in its judgment of 11 October 2018, dismisses the appeal. It holds that the final criminal conviction for involuntary homicide necessarily implies that the employer was aware of the danger and did not take the necessary measures to protect the employee. The civil court cannot challenge this assessment. The decision is final.

The reasoning of the court — analysed

The French Supreme Court relies on a fundamental principle of French law: the authority of res judicata in criminal matters over civil matters. This principle, set out in Article 4 of the Code of Criminal Procedure (paragraph 3), provides that 'the criminal judgment has the authority of res judicata in respect of the civil judge'. In practical terms, this means that what has been finally decided by a criminal court (notably guilt) can no longer be challenged before a civil court.

In this case, the Criminal Court had convicted the employer for involuntary homicide. To pronounce this conviction, it had to find that the employer had committed a characterised fault which exposed others to a risk of particular seriousness, or that he had manifestly deliberately violated a safety or prudence obligation. However, inexcusable fault, defined by Article L. 452-1 of the Social Security Code, requires that the employer was aware of the danger to which the employee was exposed and that he did not take the necessary measures to protect him.

The lower courts were therefore correct. Since the employer had been criminally convicted of involuntary homicide, he could no longer argue that he was not aware of the danger. The criminal fault necessarily entailed awareness of the danger. The French Supreme Court approves this reasoning: 'since the matter finally decided in criminal proceedings is binding on the civil judge, the employer finally convicted of involuntary homicide committed, in the course of work, against his employee and whose inexcusable fault is sought, must be considered as having been aware of the danger to which the latter was exposed and as not having taken the necessary measures to protect him'.

This decision is consistent with established case law. It confirms that the civil court cannot revisit what has been decided in criminal proceedings. This avoids contradictions and allows victims or their dependants not to have to prove again elements already established. But note: the principle only applies if the criminal decision is final (no further appeal possible). If an appeal is pending, the civil court may stay proceedings.

What this changes for you — concretely

For the dependants of an employee who died as a result of a work accident, this decision considerably simplifies their path. If the employer has been criminally convicted of involuntary homicide, they no longer have to demonstrate awareness of the danger: it is established. They can more easily obtain recognition of inexcusable fault, and therefore an increase in the pension (usually additional compensation) and damages.

Let's take a numerical example. Imagine an employee died in Beaumont, in a transport company. His annual pension was €8,000. In the event of inexcusable fault, this pension is increased (often by at least 50%, i.e. an additional €4,000 per year). In addition, the CPAM can recover the sums paid from the employer through a recourse action. Finally, the dependants can obtain damages for non-pecuniary loss, often several tens of thousands of euros.

For the employer, the consequences are serious. A criminal conviction for involuntary homicide leads almost automatically to recognition of inexcusable fault, with the resulting increase in work accident contributions (the AT/MP rate can be multiplied by 2 or 3) and recourse actions by the CPAM. Not to mention the damages paid to the dependants. If you are an employer, you must therefore be extremely vigilant about the safety of your employees. A fatal accident can not only result in a criminal penalty (fine, suspended prison sentence), but also ruin your business on the civil side.

If you are in this situation (dependants or employer), you must act quickly. The limitation periods are short: 2 years to request recognition of inexcusable fault from the date of the accident or the cessation of cover. Do not delay in consulting a specialised lawyer.

Four tips to avoid this type of dispute

• Update your single document for risk assessment (DUER) every year, and after each accident. This mandatory document lists the dangers and prevention measures. In the event of an accident, it will be examined by the judges. An incomplete DUER may be considered a fault.
• Train and inform your employees about the specific risks of their position. Awareness of danger comes through information. Organise regular safety training, and keep attendance records.
• Do not neglect reports from your employees. If an employee alerts you to a dangerous situation, take immediate action. A failure to react may be considered an acceptance of the risk.
• Take out liability insurance covering work accidents and criminal risks. Some policies include criminal defence and damages cover. Check your contracts.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further analysis: related case law and developments

This decision is part of a consistent line of French Supreme Court rulings. Already, in a judgment of 28 February 2002 (No. 99-21.789), the Social Chamber had held that a criminal conviction for involuntary homicide implied awareness of the danger. The 2018 judgment merely confirms this principle, but with a particularly clear wording: 'must be considered as having been aware of the danger'. There is therefore no reversal.

However, an important nuance: if the criminal conviction is for involuntary injuries (and not homicide), the reasoning may be different. Inexcusable fault requires awareness of the danger, and a conviction for involuntary injuries may result from mere carelessness without awareness of the danger. The civil judges then retain their power of assessment. But for homicide, the criminal qualification necessarily implies a characterised fault or a deliberate violation, hence awareness of the danger.

In the future, we can expect the French Supreme Court to maintain this case law, or even extend it to other criminal offences (such as endangering the life of others). Employers must therefore accept that any criminal conviction for a non-intentional offence related to work will have almost automatic civil repercussions.

Frequently asked questions

1. What is the employer's inexcusable fault? It is a fault of exceptional gravity, characterised by awareness of the danger and the absence of measures to protect the employee. It allows for an increase in the pension and damages.
2. Can I contest inexcusable fault if I have been criminally convicted of involuntary homicide? No, according to this judgment. The final criminal conviction establishes awareness of the danger. You can no longer contest it before the civil court.
3. What are the time limits for bringing an action for recognition of inexcusable fault? You have 2 years from the date of the accident or the cessation of cover by the CPAM. After that, you are time-barred.
4. What compensation can I obtain in the event of inexcusable fault? An increase in the pension (often 50% to 100%), damages for non-pecuniary loss, and reimbursement of certain expenses. The total can reach several hundred thousand euros.
5. What is the difference between involuntary homicide and inexcusable fault? Involuntary homicide is a criminal offence (Article 221-6 of the Criminal Code). Inexcusable fault is a civil concept that gives rise to increased compensation. But the criminal conviction facilitates recognition of inexcusable fault.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →