Criticism of an employee’s management of a department […]

Court of Appeal of Versailles, 11^th chamber, September 9, 2021, n°19/02966 Cass. Soc. March 22, 2023, n°21-23.455 > Facts of the case: An employee was hired on January 3, 2005 as a quality control manager in a military mutual insurance company. Forced promotion, he is forced to operate the department in which he was employed alone due to the maternity leave of his supervisor from April to October 2016. Upon her return from leave, she prepared a report on the management of the department during her absence, including a number of criticisms of her. On November 21, 2016, the latter alerted his employer to:

• the diffusion of this state of affairs which he considered humiliating;
• the absence of a response to his e-mail contesting the report drawn up against him.

The company did not follow up. 8 days later, the employee was placed on sick leave, which lasted 5 months before he was declared unfit by the occupational physician. On July 7, 2017, he was terminated for unfitness and inability to reclassify. On August 28, 2017, he brought an action before the Boulogne-Billancourt industrial tribunal to contest his dismissal, believing that his unfitness was only the result of the harassment he claimed to have suffered. However, the labour court dismissed all of his claims. He appealed to the Versailles Court of Appeal, which, in a decision dated September 9, 2021 :

• The court ruled that the employee's dismissal was null and void, given that the employee's unfitness was the reason for his dismissal, and ordered the company to pay damages for moral harassment;
• added a conviction for breach of the safety obligation.

The Court of Cassation rejected the appeal and, as is often the case, took refuge behind the analysis of the judges of the Court of Appeal. It thus considers, in the first place, that the employer was finally satisfied with " contest only the sovereign assessment by the court of appeal of the facts and evidence it has, without disregarding the specific rules of evidence and exercising its powers under Article L. 1154-1 of the Labor CodeIn this case, the court deduced both the existence of specific facts which, taken as a whole, make it possible to presume the existence of moral harassment and the absence of justification by the employer of objective elements unrelated to any harassment. " Secondly, it held that the Court of Appeal was perfectly entitled to deduce the existence of a breach by the employer of its safety obligation once it had noted that :

• " on November 21, 2016, the employee alerted his hierarchical superiors about the situation of suffering in which he found himself following the dissemination by his direct hierarchical superior of a humiliating inventory of fixtures and the lack of follow-up to his November 14, 2016 email protest" ;
• and that "the employer does not substantiate any reaction to receipt of the November 21, 2016 message and does not even establish that it responded. "

> Decisions that can be criticized in several respects:

• On the undermining of the employer's power of direction

While the employee may have felt that the criticisms made by his supervisor were offensive to him, this is a purely personal interpretation since the terms used in the statement are entirely professional and free of disrespectful or insulting language. To see for yourself, just read these: "- a department bogged down in managing claims on a limited scope, which has made little progress since its creation in February 2015, generating frustration and misunderstanding both internally and externally; -lack of a common methodology -Operational management that is not in line with the department's objectives and operations -Activity monitoring that does not allow for the anticipation of crises (we look at what we have done) -lack of visibility of what remains to be done (' ) We get overwhelmed by the volume of claims in times of crisis..." However, the judges - quite surprisingly - consider that these criticisms call into question the work accomplished in a "harsh and inappropriate manner" and that the terms used are "brutal". However, although the terms used may seem harsh - although this is largely debatable - the fact remains that this is not enough to characterize a situation of moral harassment. It is also unfortunate that the judges do not explain why they felt the criticism was inappropriate. They will also take into account the fact that the employee had a positive evaluation report for the previous year and that he had been given a raise 4 months earlier, so that finally, according to them, the employee could not receive any more criticism. This is not more serious and shows a subjective position to say the least. Indeed, criticism of the management of a department - in terms that can be considered professional - cannot seriously characterize a situation of moral harassment, unless the employer's power of direction is reduced to nothing. It should also be noted that the employee had executive status, so that the employer could legitimately make demands on him.

• On the absence of proof by the employee of repeated acts and the reversal of the burden of proof of harassment

For the record, moral harassment, in order to be characterized, implies repeated acts with the purpose or effect of deteriorating working conditions likely to :

• violate his rights and dignity;
• alter his physical or mental health;
• or compromise its professional future (article L. 1152-1 of the Labor Code).

Thus, a single act is not sufficient to characterize moral harassment. In addition, it is the employee's responsibility to first provide the "necessary factual elements suggesting the existence of moral harassment "It is only in the presence of such elements that the company will have to prove that its actions are justified by objective elements unrelated to any harassment (article L. 1154-1 of the Labor Code). However, the only event that gave rise to the employee's complaint was the publication of a report critical of him. No other fact - except for the company's lack of subsequent reaction to the November 21, 2016 denunciation - was retained by the trial judges to characterize the situation of moral harassment. The existence of repeated acts is, in these conditions, extremely debatable. Moreover, in our opinion, the employee did not present any factual elements suggesting the existence of moral harassment. In holding to the contrary, and that it was necessary to analyze the objective elements introduced into the proceedings by the defendant company, the judges, in our opinion, reversed the burden of proof by placing it on the employer. Although regrettable, the decision of the Court of Cassation is unprecedented and thus not destined to be widely published. > One lesson to be learned from these decisions, however: In support of his claims for compensation, the employee argued that he had been the victim of burnout. Fortunately, the trial judges found that, in the absence of evidence to support his statements, the employer could not be accused of any breach on this point. They will however retain that the absence of reaction of the company to the message of denunciation of a situation of suffering at work constitutes a breach of the obligation of safety, reasoning approved by the High Court. The inertia of the company thus justifies, for the Court of Appeal, its condemnation to the payment of the sum of 5.500 €. In addition to the particularly large amount of this compensation, the latter is finally intended to compensate twice for the same loss since the employee was also awarded € 5,000 in damages for harassment due to the lack of response to this email (!) This being said, these decisions remind us of the need to always react to an employee's alert about his or her working conditions, and in any event to avoid leaving an e-mail or letter unanswered. As all situations are different, so are the reactions and we are at your side to help you adapt your response to the circumstances.