Harassment – An update on recent case law in this area

In three rulings handed down on the same day, February 14, 2024, the French Supreme Court (Cour de cassation) had the opportunity to revisit the impact of a situation of moral harassment on dismissal, specifying that :

1. Moral harassment may justify dismissal for serious misconduct, even if the employee has long service and a clean disciplinary record;
2. A management style that is harmful to employees may justify dismissal for gross misconduct, regardless of whether or not the manager's misconduct constitutes moral harassment;
3. Employers may be held liable if they fail to take all necessary measures to prevent moral harassment, although this does not mean that the dismissal is null and void. Here's an update on these recent rulings, which will help you understand this type of behavior and procedure.

 

• Can moral harassment justify dismissal for gross misconduct of an employee with a long career free of reproach or sanctions?

As a matter of principle, seniority or the absence of a disciplinary record are criteria which may, in certain cases, attenuate the characterization of serious misconduct. The question then put to the High Magistrates in this case was whether the employee's career without reproach or sanction could lessen the seriousness of the misconduct, even though he had been dismissed for moral harassment. In this case, the employee, accused of moral harassment, contested the classification of her dismissal as serious misconduct, arguing in particular that :

• she was much appreciated by her superiors for the quality of her work and her relations with her superiors and colleagues;
• she had never been the object of the slightest reproach in her 22-year career.

In this respect, it pointed out that serious misconduct had to be assessed "in concreto", i.e. taking into account the employee's seniority, professional qualities and disciplinary record. While it is true that in the event of moral harassment being established, the employer must punish the perpetrator (1), the fact remains that the characterization of serious misconduct will depend on the circumstances of the case, such as repeated acts of insults, verbal and physical threats and humiliating and degrading behavior towards colleagues (2). Article L.4121-1 of the French Labor Code requires employers to take the necessary measures to protect the physical and mental health of their employees, while articles L.1152-4 and L.1153-5 of the same code require employers to prevent moral harassment. Although serious misconduct is often found in cases of moral harassment, it is not [et ne doit être] systematically pronounced. In this context, the employee's position could have been heard by the High Magistrates. However, the French Supreme Court ruled against her, finding that her "inappropriate and harassing behavior constituted serious misconduct", regardless of her seniority or lack of previous disciplinary experience, and that her dismissal was therefore justified. In this case, this behavior had manifested itself in "criticism, mockery, verbal and physical violence, destabilization of professional relations and a form of manipulation that went beyond simple jokes between colleagues", noting also that "the employee's ambivalence was a source of suffering at work". In fact, this decision is in line with case law on the subject, which considers that seniority does not mitigate fault in this case (3). Clearly, taking seniority into account has no place when the health and safety of employees is at stake. This means that we have very little room for maneuver in such circumstances. Conversely, and by way of example, gross misconduct was ruled out when it was found that the employee, dismissed for having adopted a management style towards his employees that constituted moral harassment, had nevertheless never been made aware of the difficulties involved in performing his supervisory duties and was himself a victim of moral harassment. In this case, the judges requalified the serious misconduct as a simple real and serious cause for dismissal (4).  

• Can a superior's harmful management style on his employees' health constitute serious misconduct, even though moral harassment is not recognized?

In this case, a plant manager was dismissed for gross misconduct following numerous letters from employees alleging harassment. The Court of Appeal considered that the dismissal was not based on either serious misconduct or real and serious cause, on the grounds that :

• The employer had delayed initiating the disciplinary procedure, which took place on November 24, 2014, despite having been alerted to acts of moral harassment as early as the previous October 23 ;
• There was no justification whatsoever for the organization of an investigative measure following the denunciations;
• The letters and affidavits produced referred to a general attitude or to events that were not dated or detailed;
• Merely denouncing a tense working climate, or difficult working conditions and relationships, does not qualify as moral harassment, nor does a situation of tension, stress or annoyance, however intense, which is linked to a difficult professional context, or even to a work overload.

For its part, the company had endeavored to demonstrate the reality of the moral harassment facts, leading it to consider that, if the qualification of moral harassment was not finally retained, the dismissal would in fact be judged without real and serious cause. The Court of Cassation disagreed, ruling that the employee's "inappropriate management style, likely to impress and harm the health of her subordinates" was "such as to characterize behavior making it impossible for her to remain in the company". To put it plainly, she focused on the very definition of serious misconduct to consider that the dismissal was justified, regardless of whether or not the facts as such constituted moral harassment. She then reminded trial judges that they cannot simply rule that the acts attributable to the employee do not constitute moral harassment, but must also verify whether, insofar as they constitute a breach of obligations arising from the employment contract or employment relations, they did not make it impossible for the employee to remain in the company. This decision is also in line with previous case law on the subject, since the Cour de cassation had already made a similar ruling in a decision dated February 8, 2023 (5), considering that "the practice by the employee of a management style likely to impress and harm the health of his subordinates" constituted serious misconduct making it impossible for him to remain in the company. However, it is sometimes difficult to differentiate between brutal and humiliating management which constitutes moral harassment, and that which constitutes simple serious misconduct, since on the other hand - and even though the facts could be comparable - a humiliating management method was qualified as moral harassment in another case which involved various forms of pressure, or insulting and disparaging remarks about subordinates (6). Translated with DeepL.com (free version) As you can see, the dividing line is sometimes very fine, so it's important to bear in mind that dismissal for gross misconduct may be considered - even if the investigation carried out does not lead to a situation of moral harassment within the meaning of the law (7) and on the basis of the evidence available - and this, if the inappropriate behavior of the manager or accused person is such as to make it impossible to continue the employment contract (e.g., degrading and humiliating comments with a sexual connotation and openly sexist, or racist and sexist comments about one or more subordinates). There is therefore not necessarily and systematically a correlation to be made between serious misconduct and moral harassment.  

• Does an employer's failure to meet its obligation to prevent moral harassment justify invalidating a dismissal?

In this case, an employee, dismissed for real and serious reasons, requested that her dismissal be requalified as null and void, claiming that she had been subjected to moral harassment, so that the employer had failed in his obligation of prevention and safety. The Court of Appeal upheld the employee's claim, ruling that the employee's behavior that led to the harassment "was linked to deficiencies in the general organization of the company that had been identified and not dealt with by the employer, and that the conflicts attributed to the accused employee were made possible by the employer's organizational shortcomings in its power of direction". Very clearly, the Court of Appeal sanctioned the employer's failure to meet its obligation of prevention, and more generally, its obligation of safety, so that this failure justified, in its view, the nullity of the dismissal. His reasoning was undoubtedly based on article L.1152-4 of the French Labor Code, which stipulates that "the employer shall take all necessary measures to prevent moral harassment". In this context, and under the terms of article L.1152-3 of the aforementioned Code, "any termination of the employment contract in disregard of the provisions of articles L.1152-1 and L.1152-2, or any provision or act to the contrary, is null and void". However, the French Supreme Court (Cour de cassation) overturned this position, reiterating a well-known general principle: "no nullity without a text". In this case, the employee had not been dismissed for having denounced moral harassment. However, nullity is only provided for when the dismissal follows a denunciation of moral harassment of which the employee has been a victim or which he has reported (8). In such a situation, the employee will not be able to request that his or her dismissal be annulled, but will simply be able to claim damages, since the employer, by failing to take the necessary steps to put an end to the situation, has failed in its duty of prevention.   Whether you need to set up and manage internal harassment procedures, or have difficulties understanding the disciplinary procedures to be implemented, our team will be happy to provide you with any advice you may need on the subject.   (1) C. trav. art. L.1152-5 (2) Cass. Soc. May 21, 2014, no. 12-25.315 (3) Cass. soc., June 7, 2011, no. 09-43.113; Cass. soc., May 10, 2012, 11-11.371 (4) Cass. Soc., January 29, 2013, no. 11-23.944 (5) Cass. soc. February 8, 2023 no. 21-11.535 (6) Cass. Soc. May 10, 2012, no. 11-11.371 (7) C. trav. art. L. 1152-1 (8) C. trav. art. L.1152-2