Temporary work: who can challenge the disability rating after an accident?

Imagine: you are the manager of a logistics company in Quetigny. You use a temporary worker to strengthen your team during a peak in activity. Unfortunately, this temporary worker is injured on your site. The CPAM (Primary Health Insurance Fund) sets a permanent disability rating of 15%. Your employer's accident contribution increases. You believe this rating is too high, unjustified. Can you challenge it? The Court of Cassation's answer is clear: no. Only the temporary employment agency, which is the legal employer, can do so. This decision of 15 March 2018 (No. 16-19.043) serves to remind us of a fundamental rule of temporary work law: the relationship of subordination (the power to give orders, to control their execution and to impose sanctions) is with the temporary employment agency, not with the user company (your company).

The facts: a story that happens every day

Mr X, an employee of a temporary employment agency (ETT), is assigned to work for a user company on a mission. On 1 March 2002, he suffers an industrial accident on the user company's site. The CPAM of Lille-Douai recognises a permanent disability rating. The user company, considering the rating excessive, challenges the decision before the Tribunal du contentieux de l'incapacité (Disability Disputes Court). The question is simple: does it have standing to sue? The Douai Court of Appeal, in a judgment of 28 April 2016, had held that it did, on the ground that the user company had a direct interest in challenging the rating because it affects its contributions. But the Court of Cassation quashes this judgment. It recalls that only the legal employer — the ETT — is a party to the procedure for fixing the rating. The user company, although bearing part of the cost through the contribution system (Article L. 241-5-1 of the Social Security Code), is not the employer and therefore cannot challenge the rating before the disability judge. However, it may bring an action against the ETT in contractual liability (if the ETT has committed a fault) or challenge the allocation of the cost before the general social security disputes court.

The court's reasoning — dissected

The Court of Cassation relies on Article L. 1251-1 of the Labour Code: 'The sole employer of an employee bound by a temporary employment contract to a temporary employment agency and placed at the disposal of a user company is the temporary employment agency.' In other words, the relationship of subordination (the power to give orders, to control their execution and to impose sanctions) is with the ETT, not with the user company. However, challenging the disability rating falls within the jurisdiction of the disability disputes court, which is a specific procedure where only the parties to the initial decision (the CPAM and the employer) may intervene. The user company is not the employer, so it has no standing to sue. This confirms previous case law (Cass. 2e civ., 10 April 2008, No. 07-13.058). But note: the user company is not without remedies. It can challenge the allocation of the accident cost before the tribunal judiciaire (general social security disputes court) if it believes the accident is not related to the mission. Or, if the ETT has committed a fault (for example, by failing to train the employee), it can sue the ETT in contractual liability. In short, the decision does not close all doors, but it closes a very specific one: that of directly challenging the disability rating.

What this means for you — concretely

If you are a user company (whether your head office is in Beaune, Quetigny or elsewhere), this decision prevents you from challenging the disability rating set by the CPAM for an injured temporary worker. You must use other avenues: challenge the allocation of the cost (Article L. 241-5-1) before the social chamber of the tribunal judiciaire within two months of notification of the employer's account statement, or bring an action in liability against the ETT. If you are the ETT, you remain the CPAM's sole interlocutor for challenging the rating. If you are the temporary worker, this decision does not directly concern you, but be aware that only your employer (the ETT) can challenge the rating, not the company where you work. Numerical example: a SME of 50 employees in Quetigny sees its employer's accident contribution increase by €2,000 per year following a 10% disability rating for a temporary worker. It cannot challenge this rating. But it can ask the CPAM to reconsider the allocation if it proves that the accident is not related to the mission. undefined, I have come across cases where the user company, having failed to challenge within the time limits, had to bear an increased contribution for several years. However, be careful: just because you cannot challenge the rating does not mean you have to accept everything. There are remedies, but they are different.

Four tips to avoid this type of dispute

• Tip 1: Draft a precise assignment contract with the ETT, including a clause guaranteeing the financial consequences in the event of an industrial accident. This will allow you to seek recourse against the ETT if the disability rating is wrongly set.
• Tip 2: Upon receipt of the annual employer's account statement, verify the allocations. You have two months to challenge the allocation of the cost before the social chamber of the tribunal judiciaire.
• Tip 3: Train your teams in safety to reduce the risk of accidents. Fewer accidents = fewer contributions, and fewer disputes.
• Tip 4: If an accident occurs, document the circumstances precisely. This may be useful if you challenge the allocation (for example, if the accident is due to the employee's fault or to a lack of training by the ETT).

Further reading: related case law and developments

This decision is part of a consistent line: the Court of Cassation has already held that the user company cannot challenge the disability rating (Cass. 2e civ., 10 April 2008, No. 07-13.058). It also confirms that challenging the allocation of the cost is a separate avenue (Cass. 2e civ., 19 January 2017, No. 15-29.197). The trend is therefore clear: the legislature intends that only the legal employer (the ETT) should be a party to disability disputes. What few people know is that the user company can also bring an action in contractual liability against the ETT if the latter has committed a fault (for example, by failing to provide protective equipment). The future? Perhaps a reform to give the user company a right of oversight, but for now, the rule is strict. In the meantime, if you are a user, do not attempt to challenge the rating directly: your claim would be inadmissible.

Frequently asked questions

• Can I challenge the disability rating of a temporary worker injured on my premises? No, only the employer (the ETT) can do so. You can challenge the allocation of the cost.
• What is the time limit for challenging the allocation of the cost? Two months from notification of the annual employer's account statement.
• What if the ETT refuses to challenge the rating? You can sue the ETT in contractual liability for breach of the assignment contract.
• Does this decision also apply to commuting accidents? Yes, the same principle applies: only the legal employer can challenge the rating.
• Can I take action against the CPAM? No, the CPAM is not responsible for the rating; you can only challenge the allocation or take action against the ETT.

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