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The reaction of a victim of harassment may not be used as ground for dismissal

French Supreme Court, July 10, 2019, n°18-14.317

An employee may not be disciplined or dismissed « for refusing to be submitted to repeated acts of moral harassment ». The French Supreme Court seldom has the opportunity to illustrate this immutable principle provided under Article L. 1152-2 of the French Labor Code.

By a decision dated July 10, 2019, the Supreme Court ruled that the dismissal of an employee which is partly grounded on a « less collaborative attitude », on dissensions created within a team or on the disparagement of the managing director is null and void if it appears that the employee’s behavior is a reaction to the moral harassment to which he was submitted (FSC, July 10, 2019, n°18-14.317).

If such a decision is not new (see FSC, June 29, 2011, n°09-66.444) it stands out for its radicalism. In this regard, the French Supreme Court confirms that the Court of appeal had no obligation to examine the entirety of the dismissal letter once it has established that at least part of the motivation was based on the treatement the employee had been exposed to. The other grievances directed at the employee were particularly serious (forgery of an internal document for the payment of a premium) and had connection with the deterioration of the employee’s working conditions.

Does this mean that a dismissal grounded on objective motives but pronounced in a context of moral harassment is automatically null and void? Hopefully not.

Yet, the employer must first take the appropriate steps to dispel any suspicion of retaliation against the employee alleging a situation of harassment (handling of the complaint, organization of an internal investigation, presentation of the findings). He should also make sure that the grievances put forward in support of the dismissal are objectively established and are unrelated to the employee’s accusations.