Combining dismissal and freedom of expression

The French Labor Code and case law stipulate that employees have freedom of expression both inside and outside the company. This is a fundamental freedom that the employer may restrict if justified by the nature of the activity to be performed and proportionate to the aim pursued. It is possible to dismiss an employee who abuses his or her freedom of expression, but this is strictly limited to cases of insulting, defamatory or abusive language.

Employers must be extremely vigilant, as the French Supreme Court (Cour de cassation) has ruled that in the absence of characterized abuse, the dismissal is null and void, without the need to analyze any other grounds for dismissal. Case law is very restrictive. For example, an employee’s abusive writings in the course of proceedings are not abusive. In another case, a letter widely circulated within the company, in which an employee sharply criticizes his line manager, was also found not to be abusive.

A widely circulated e-mail in which an employee accuses his management of blackmail and describes a proposed collective agreement as a sham. The dismissal is deemed null and void. The employee may request either reinstatement, which the employer may not oppose, or compensation in the event of reinstatement. You will also have to pay all wages due for the period between dismissal and reinstatement, without being able to deduct any income received during this period.

In the absence of reinstatement, the employee will be entitled to damages of at least six months’ salary. This means that the maximum scale will apply to severance pay, legal or contractual redundancy pay, notice pay and vacation pay, where case law is very restrictive and the risks associated with reinstatement are high. Such is the seriousness of the offence that we advise against using it as a ground for dismissal, since it is linked to employees’ freedom of expression, except in the case of insults that are well-founded and proven by witness testimony.

What’s more, a bad court ruling is bound to have adverse repercussions internally, as employees may feel free to make totally inappropriate comments on the basis of this fundamental freedom. In practice, this trend in case law means that some employers prefer to disguise the grounds for dismissal, even if it means that the termination is deemed to lack real and serious cause.

Rather than exposing oneself to a null dismissal when there has been inappropriate behavior, it demonstrates all the limits of this line of jurisprudence.