New ruling by the French Supreme Court on moral harassment

Cass. Soc. April 19, 2023 no. 21-21.053 In a widely-publicized decision handed down in plenary session, the Social Division of the French Supreme Court (Cour de cassation) has reversed its case law on moral harassment, ruling that employees who report such acts no longer need to qualify them when reporting them. This decision, which goes against the grain of the solution it adopted in 2017, requires a closer look at the case that led to this jurisprudential reversal. (I), which, in the light of the Court's most recent decisions, might have seemed foreseeable (II). 1. A look back at the facts and proceedings of this case In the case brought before the High Court, an employee working as a psychologist in an association had been dismissed for gross misconduct, for having :

• the attitude and decisions taken by the director concerning her, but also more generally the operation of the association,
• made serious accusations against his colleagues.

Claiming to have been subjected to and to have denounced acts of moral harassment, she brought claims before the industrial tribunal for the annulment of her dismissal and the payment of various sums for moral harassment and breach of the safety obligation. The employee thus felt she was entitled to the protection afforded to employees reporting acts of moral harassment, as provided for in article L.1152-2 of the French Labor Code. As a reminder, this article stipulates that no person who has suffered or refused to suffer repeated acts of moral harassment, or who has, in good faith, reported or testified to such acts, may be excluded from a recruitment procedure or from access to an internship or training period in the company, or may be penalized, dismissed or subjected to a discriminatory measure. In a ruling handed down on April 15, 2021, the Caen Court of Appeal found that the wording of the letter of dismissal entitled the employee to claim the benefit of the protective provisions of article L. 1152-2 of the French Labor Code, and ruled that the employee's dismissal was null and void, in the absence of any demonstration of bad faith on her part. The employer challenged this decision and appealed to the French Supreme Court. The latter criticized the lower courts for ruling the dismissal null and void on the aforementioned grounds, even though in her letter denouncing the manager's behavior, the employee had not described the acts complained of as moral harassment. He added that the letter of dismissal also made no reference to any denunciation of such facts. In short, the employer criticized the Court of Appeal for : - over-interpreted the employee's comments and thus deprived its decision of a legal basis, - distorted the letter of dismissal. However, the Cour de cassation followed the reasoning of the Court of Appeal, ruling that : "an employee who denounces acts of moral harassment cannot be dismissed for this reason, regardless of whether he or she qualified the said acts as moral harassment at the time of their denunciation, except in bad faith, which can only result from the employee's knowledge of the falsity of the facts he or she denounces". It thus dismissed the employer's appeal. 2. A foreseeable reversal of case law? With this decision, the Court reverses its 2017 case law (Cass. Soc. 13 sept. 2017 n°15-23.045), in which it established that it was up to the employee to qualify the acts of moral harassment if he wished to benefit from the protection afforded by article L. 1152-2 of the French Labor Code. However, this rigorous decision, which could be considered as being full of common sense, was criticized by some academics, which is why the Court issued several rulings suggesting a change of position. As early as 2021, the Court ruled that if an employee denounces facts without qualifying them as moral harassment, but the employer uses such a qualification in the letter of dismissal, then the dismissal must be deemed null and void (Cass. Soc., June 9, 2021, no. 20-15.525). Last year, the Court ruled that the dismissal of an employee who had made non-abusive use of his right to freedom of expression was null and void (Cass. Soc., February 16, 2022, no. 19-17.871). While such a solution may seem surprising at first glance, it is in line with a recent trend in case law adopted by the French High Court, aimed at facilitating access to the protection afforded by Article L. 1152-2 of the French Labor Code. In any event, it should be remembered that this protection only applies when the employee is clearly not acting in bad faith. On the other hand, the employer can punish or even dismiss an employee who has acted with knowledge of the falsity of the facts he or she is denouncing. This bad faith may be directly characterized by the lower courts, without any express reference to it in the letter of dismissal (Cass. soc., September 16, 2020, no. 18-26.696). However, it remains extremely difficult to report... So be careful.