France: Employment Alert – July 2019

Last Updated: 26 July 2019
Article by Katell Deniel-Allioux, Julie Caussade and Frédérique Meslay-Caloni

Focus on workplace harassment: new decision and reminder of of the previous case law

1. The prohibition of workplace harassment applies to an employee exempted from working

In a decision published on June 26, 2019, the Social Chamber of the French Supreme Court laid down the principle according to which:

The provisions of Article L 1152-1 of the French Labor Code "are applicable to an employee exempted from working due to an end-of-career leave since the employment contract is not terminated during this period" (Cass. Soc., June 26, 2019, No. 17-28.328).

In this case, the employee was on remunerated end-of-career leave put in place by company agreement until retirement age.

In practice, the employee was exempted from working until he met the conditions to benefit from retirement with full pension.

During this leave, the employee was appointed trade union delegate then elected personnel delegate.

He brought before the Employment Tribunal a claim for damages for workplace harassment on the grounds that he claimed to have suffered:

  • A refusal to provide him with the tools necessary for his trade union activity depriving him of access to the company's intranet during two years;
  • A refusal to allow him to attend the personnel delegate meetings by telepresence after recognition of his disabled worker status;
  • Errors in the calculation of the supplementary and additional pension contributions;
  • Errors in the calculation of the non-mandatory and mandatory profit sharing.

Court of Appeal's position: Rejected the very principle of compensation

The Court of Appeal considered that since the employee was on an end-of-career leave, he was no longer at his workstation in the company and therefore could not invoke any deterioration of his working conditions.

The French Supreme Court's solution:

The French Supreme Court accepted the employee's application precisely pursuant to Article L 1152-1 of the French Labor Code. As long as the employment contract is not definitely terminated, the employee benefits from protection against workplace harassment.

The Supreme Court quashed and invalidated the judgment rendered by the Court of Appeal, that composed with different judges, will have to appreciate whether or not the alleged facts characterize workplace harassment.

2. Reminder: the attitude of the victim of workplace harassment does not affect the principle of the employer's liability in terms of safety and moral health at work 1

In this case, the employee considered that she was a victim of workplace harassment and trade union discrimination and brought before the Employment Tribunal a claim for compensation in this respect for EUR 50,000.

The Court of Appeal ruled that the facts characterized harassment and discrimination and decided to award her EUR 5,000 as damages to compensate for the prejudice suffered considering that the "employee had contributed by her own attitude during the personnel representatives meetings to the deterioration of her working conditions".

On the grounds of Article L 4122-1 of the French Labor Code, the French Supreme Court quashed and invalidated the judgment rendered by the Court of Appeal in that it limited the amount of damages due by the employer to the employee for workplace harassment and trade union discrimination.

Thus, although under the aforementioned Article, the employee must take care, depending on his training and according to his possibilities, of his safety and health and those of the other people concerned as a result of his actions or omissions, paragraph 3 of this Article recalls that these provisions do not affect the principle of the employer's liability.

It has to be noted that the French Supreme Court in that case made a literal and strict application of the provisions of the French Labor Code regarding the obligations incumbent on the employer in terms of safety.

Consequently, it matters not that the interested party's attitude contributed to the deterioration of her working conditions, when the facts are established, they must give rise to compensation without the amount of the compensation due to the employee victim of workplace harassment and trade union discrimination being limited.

The French Supreme Court thus confirms its case law that gives precedence to the principle of the employer's liability over the employees' obligations in matters of safety and health in the workplace.

3. The statute of limitations applicable to the workplace harassment offense only starts from the last act of harassment committed

In a case where the employee had filed a complaint with an application to join criminal proceedings as a civil party further to repeated acts of workplace harassment2 during nearly 20 years (from 1992 to 2012), the Court of Appeal considered that the facts had been time-barred as regards the public action.

Let us recall that save exceptions, the statute of limitations of the public action starts on the day on which the offense is committed.

However, for offenses that extend in time like workplace harassment, the Criminal Chamber of the French Supreme Court held in a decision dated June 19, 2019 that will be widely circulated (No. 18-85725, F- PBI) that:

"The statute of limitations starts, for each of the acts constituting the offense, only from the last act of harassment."


1 See also in the same line Cass. Soc. February 10, 2016, No.14-24350

2 It should be specified that Article 222-33-2 of the Criminal Code penalizes workplace harassment: "Harassing another person by repeated conduct with is designed to or which leads to a deterioration of his conditions of work liable to harm his rights and his dignity, to damage his physical or mental health or compromise his career prospects is punished by two years' imprisonment and a fine of EUR 30,000."

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