The criminal conviction of an employee who has disturbed the smooth running of the company […].

An employee's criminal conviction for disrupting the smooth running of the company justifies dismissal for real and serious cause. Cass. soc. April 13, 2023, no. 22-10.476 In principle, an act attributed to an employee cannot constitute misconduct if it relates to the employee's personal life (Cass. Ch. Mixte. May 18, 2007, no. 05-40.803). Thus, according to the French Supreme Court, even if a personal event causes a disturbance in the company, this cannot justify disciplinary dismissal (Cass. soc. March 9, 2011, no. 09-42.150). It was in the light of these principles that it was ruled that the dismissal of an employee for gross misconduct due to his indictment and placement in pre-trial detention for participation in a criminal association and possession of heavy weapons was devoid of real and serious cause (Cass. soc. March 5, 2008, no. 06-42.387). However, the Cour de cassation has provided for a number of exceptions to this principle. This is particularly the case when the behavior of the person concerned, taking into account his or her duties and the company's specific purpose, has created a serious disturbance within the company. For example, it has been ruled that an employee taken into police custody and subsequently convicted of committing domestic violence in an apartment rented to him by his employer creates a serious disturbance within the company and therefore justifies dismissal for real and serious cause (Cass. soc. September 14, 2010, no. 09-65.675). On April 13, the French Supreme Court (Cour de cassation) issued a new ruling in line with this decision. 1. The facts of the case Hired in 1990 by a champagne company, an employee held the position of vineyard tractor operator. In 2013, he was found guilty of sexually assaulting minors while working as a soccer coach at a club in Ay, the town where he also worked. He was sentenced to four years' imprisonment and incarcerated for over 3 years, from October 25, 2013 to November 10, 2016. The facts had caused a lasting stir in the town of Ay. During this period, the company suspended the performance of his employment contract. On the following November 14, the employee reported for work, but was arrested the following day until he returned to work on March 27, 2017, thus failing to return to work permanently after his incarceration. As soon as he returned to the company, some forty employees refused to work with him. The following day, the employees again voiced their disagreement with his return, going so far as to go on strike in order to be heard by the employer. One of the company's trade unions argued to management that "the disturbance in the company (...) was foreseeable". Faced with such a situation, the employer summoned the employee to an interview prior to possible dismissal on March 28, 2017. He also notified her of a precautionary layoff. In a letter dated April 7, the employee was dismissed, with notice waived, on the grounds that his criminal conviction had objectively interfered with the smooth running of the company. 2. Clear evidence of a disturbance within the company Not lacking in audacity, the employee challenged his dismissal before the Epernay industrial tribunal (Conseil de prud'hommes d'Epernay) - before which he sought damages for dismissal without real and serious cause - which, fortunately, did not uphold his claim. The Council also ordered him to pay the company the sum of €300 under article 700 of the French Code of Civil Procedure, an award that is rare enough to merit note. With a stubbornness that is hard to understand, he appealed against this decision to the Reims Court of Appeal. He argued before this court that the alleged disturbance in support of the dismissal had been orchestrated by the employer insofar as :

• on November 14, 2016, no employee had come to express his dissatisfaction with the resumption of work, having been able to work without any difficulty throughout the day;
• at the end of his work stoppage, he had informed management of his return to work on March 27, 2017, and when he arrived at 7:15 a.m. to take up his post, employees were already present to express their protest and the bailiff appointed by the company had arrived on the scene only 9 minutes after his arrival, which would demonstrate that the bailiff had been appointed by the company before he took up his post;
• on March 28, 2017, when he reported to work again at 7:15 a.m., the same welcoming committee was present.

However, these were merely unsubstantiated suppositions, which did not convince the Court. The appellant also pointed out that there were opportunities to assign him to neighboring sites in Reims or Epernay. According to the employee, the employer could have transferred him to another site in another town rather than dismissing him. In addition to the latter was under no obligation to do so. It also assumes that a position is available, since there is no guarantee that such a stir will not be repeated in the establishment that would have welcomed the employee, given that the sites in question were only a few kilometers from his or her place of work. Logically, the Reims Court of Appeal did not accept this argument either, finding that ". an employer could not be required to seek redeployment elsewhere, it being furthermore emphasized that the proximity of the towns of Reims, Epernay and Ay to each other in the same professional environment made it illusory for Mr. X. to be reintegrated into his job with any peace of mind. ". In any case, the judges consider that it is irrelevant to question the employer's possible proposals, or the employee's agreement, which would have been given in good time, and which none of the documents submitted to the debates make it possible to establish with certainty. In fact, it was no longer possible for the employee to return to his initial duties, given the objective disruption caused to the smooth running of the company, so the dismissal was perfectly justified. The appeal to the French Supreme Court was also dismissed, as the Court of Cassation ruled that the Court of Appeal, without being obliged to go into the details of the parties' arguments, was legitimately able to deduce from the aforementioned facts that the employee's criminal conviction had created an objective disturbance to the smooth running of the company and justified the dismissal for real and serious cause. 3. The scope of decisions by the Reims Court of Appeal and the French Supreme Court (Cour de cassation) These decisions are the latest in a long line of case law:

• legitimizing a dismissal on the grounds of an objective disturbance caused to the smooth running of the company as a result of the employee's criminal conviction;
• enabling a company to re-establish a serene working environment.

Above all, the Cour de cassation rejected the employee's argument in his appeal that the Court of Appeal had failed to take account of his duties and the company's specific purpose in characterizing the disturbance. For the High Court, it is irrelevant whether any link can be made between the assaults that gave rise to the employee's criminal conviction and his duties as a vineyard tractor operator and the company's activity. In her view, the stir caused within society is sufficient in itself to characterize this disturbance. We can only welcome this pragmatic decision, which will obviously be applied in other similar situations.