NewsletterNewsletter No. 194 – February 2025
INTERNAL INVESTIGATION INTO DISCRIMINATION AND SEXUAL HARASSMENT : In a framework decision of 6 February 2025, the Defender of Rights issued recommendations concerning the conduct to be adopted by employers in cases of discrimination and sexual harassment.
First of all, the importance of ensuring the effectiveness of the internal investigation carried out by the employer, while respecting impartiality and confidentiality, is underlined. Although the law does not require it, it recommends that the employer clearly define the investigation methodology after consulting the social partners. The investigation should be carried out by at least two people from outside the department concerned, free from external pressure. The Defender of Rights recommends that the investigation be carried out with the participation of staff representatives, in order to ensure objectivity. The employer must ensure that investigators have the required legal skills. The hearing of witnesses must be conducted in a confidential and secure setting, with the possibility of support under certain conditions. Investigators must collect all available evidence, including potential covert recordings, ensure anonymity if necessary, and ensure the traceability of testimonies through signed reports. The investigation report must present the facts, the difficulties encountered, the evidence collected as well as the contemplated measures, while respecting confidentiality. A summary must be communicated to the victim and, with the latter’s consent, the anonymized report should be provided to management and staff representatives. Finally, the accused and the witnesses must be informed of the investigation’s findings (Framework Decision of 6 February 2025).
DISMISSAL OF A PREGNANT EMPLOYEE: The nullity of the dismissal of a pregnant employee entails the payment of the wages not received during the period covered by the nullity.
In this case, an employee was dismissed for serious misconduct after informing her employer of her pregnancy. However, the dismissal letter had been signed by the director of the association, who did not have the power to dismiss anyone in the absence of a delegation of powers from the board of directors. The employee then brought the case before the labor court seeking recognition of the nullity of her dismissal and payment of wages she had not received during this period. The French Supreme Court (Cour de Cassation) upheld the nullity of the dismissal for serious misconduct, on the grounds that any dismissal pronounced during an employee’s pregnancy is inherently void. The Court, also relying on Directive 2006/54/EC, reaffirmed that “the employee […] is entitled […] to the wages she would have received during the period covered by the nullity” (Cass. soc. 12 February 2025, No. 23-22.310).
DIFFERENCE IN TREATMENT AND SUBSTITUTION AGREEMENT: A difference in treatment resulting from a substitution agreement is presumed to be justified.
In this case, the merger by absorption of a company had led to the calling into question of a company agreement. A substitution agreement, aimed at maintaining compensation for commuting expenses for former employees of the absorbed company, had been implemented. An employee from the absorbing company contested the legality of this agreement, considering that it created a difference in treatment among employees. The Cour de Cassation considered that “the differences in treatment among employees belonging to the same company resulting from a substitution agreement negotiated and signed […] by the representative trade union organizations within the company, which are responsible for defending the rights and interests of employees of this whole company […], are presumed to be justified”. It is therefore up to the employee who claims a difference in treatment to demonstrate it (Cass. soc. 5 February 2025, No. 22-24.000).
MORAL HARASSMENT : In cases of moral harassment, the judge must base their decision on an analysis of all the evidence provided by the employee.
Claiming to be the victim of moral harassment, an employee filed requests before the labor court notably for the payment of damages in this respect and for the judicial termination of his employment contract. He was subsequently dismissed for unfitness and impossibility of redeployment. Contesting the decision of the Court of Appeal, which had carried out an isolated analysis of the facts to base its decision, he finally appealed to the Cour de Cassation. Relying on articles L. 1152-1 and L. 1154-1 of the Labor Code, the Cour de Cassation considered that “it is up to the judge to examine all the evidence provided by the employee […] and to assess whether the materially established facts, taken as a whole, suggest the existence of moral harassment” (Cass. soc. 5 February 2025, No. 23-20.165).
PROFESSIONAL SECURITY CONTRACT: The absence of a mention of reemployment priority in the context of a professional security contract does not invalidate the dismissal, but may give rise to damages in the event of harm.
An employee who had entered into a professional security contract reproached her employer for not having mentioned in her dismissal letter her reemployment priority within the year following the termination of her employment contract. The Court of Appeal had ruled that this omission rendered the dismissal without real and serious cause. However, according to the Cour de Cassation, if such an omission is established, it “does not deprive the termination of the employment contract of a real and serious cause, but only allows the employee who justifies having suffered harm to obtain damages” (Cass. soc. 26 February 2025, No. 23-15.427).
UNFITNESS TO WORK AND IMPOSSIBILITY OF REDEPLOYMENT: The occupational physician must refer to article L. 1226-2-1 of the Labor Code or to an equivalent wording to declare the unfitness to work of an employee and the impossibility of redeployment.
Following a non-work-related illness, an employee was declared unfit by the occupational physician with the following statement: “unfit to return to the position occupied. The employee’s health condition does not allow for redeployment proposals within the company, subsidiary and holding included, and makes him unsuitable for any position. The employee was dismissed for unfitness and impossibility of redeployment. He then brought the case before the labor court, in order to have his dismissal considered without real and serious cause, arguing that the wording of the occupational physician did not exactly reflect that of the provisions of Article L. 1226-2-1 of the Labor Code, which deprived the employer of the exemption from seeking redeployment. The Court of Cassation rejected the appeal and ruled that “the employer was exempt from seeking redeployment, the wording used by the occupational physician being equivalent to the mention of Article L. 1226-2-1 of the Labor Code” (Cass. soc. 12 February 2025, No. 23-22.612).