This newsletter reviews five notable court holdings over the last semester.

Moral harassment: the employer's investigation is valid even if all victims have not been interviewed (Cass, Soc., 8 January 2020, n°18-20.151)

An employee was dismissed for serious misconduct for morally harassing his colleagues. In order to justify its decision, the employer relied on an internal investigation.

The employee challenged the dismissal. He argued that the internal investigation could not constitute valid evidence and should be disregarded because only half of the employees were questioned.

The Employment Tribunal agreed with this argument and determined the dismissal to be without real and serious cause. In their view, the requirements of thoroughness and impartiality would require an employer accusing an employee of harassment to group all of the employee's colleagues together in order to interview them as part of its investigation. 

The Supreme Court rejected this reasoning. It considered that the mere fact that a party had produced partial and non-exhaustive components in its argument was not enough to set them aside. 

This is a reassuring result for employers, since internal investigations are often the main piece of evidence in harassment cases.

Discrimination: Dismissing an employee shortly after he reported feeling burned out suggests discrimination on the grounds of health (Cass, Soc., 5 February 2020, n°18-22.399)

An employee with 25 years' seniority was placed on sick leave a few days before taking paid leave. On his return, he informed his managers that he had been put on sick leave due to burn out but that he wished to continue in his position. Eight days later, he was dismissed for professional incompetence.

The employee challenged his dismissal, which he considered unjustified and discriminatory. 

The Court of Appeal ruled partially in his favor, declaring the dismissal to have been without real and serious cause on the grounds that professional incompetence had not been established. On the other hand, it dismissed his discrimination claims, holding that a single short-term stoppage of work followed by a return to work did not give rise to a presumption of discrimination on the grounds of health. 

The decision was overturned. The Supreme Court held that the facts must be analyzed as a whole: by finding that there was no real and serious cause for the termination of employment and that the employee had informed his employer of his health challenges very shortly before the dismissal process was initiated, the judges should have concluded that the former employee’s circumstances and subsequent treatment could have indicated discrimination. (The burden of proof is lower in discrimination claims: the employee does not have to prove discrimination; it is sufficient for him to present facts suggesting the existence of discrimination, and it is for to the employer to prove that its decision is justified by objective factors unrelated to discrimination). 

This does not mean that all dismissals are impossible once an employee has health issues, but caution is called for and it is essential that the dismissal is based on objective factors unrelated to the employee’s health condition. 

Sexual harassment: criminal acquittal does not prevent the dismissal from being declared null and void (Cass, Soc., 25 March 2020, n°18-23.682)

After having been dismissed for gross misconduct, an employee filed a complaint with the criminal court against her former employer for sexual harassment and brought an action before the Employment Tribunal to have her dismissal declared null and void for the same reason. 

The employer was acquitted under criminal law, because there was no evidence of criminal intent. Notwithstanding the acquittal, the Employment Tribunal held the dismissal null and void on the grounds of sexual harassment.

The employer challenged this decision and relied in particular on the rule of res judicata in criminal cases, according to which the decision of the criminal court, once it has become final, is binding on the civil court.

The Supreme Court rejected the employer’s arguments and upheld the Court of Appeal's ruling. It held that the authority of res judicata did not apply in relation to the employment claim because the acquittal was not motivated by the absence of facts, on which the criminal court did not rule, but only by the lack of proof of criminal intent. Intention is irrelevant in labor law, however, since proof of the facts alone is sufficient to characterize sexual harassment. The civil characterization of sexual harassment was therefore possible despite the acquittal in the criminal court.

Sick leave: the undertaking of an unauthorized activity during sick leave may lead to the suspension of the payment of the social security allowance (Cass, 2 civ., 28 May 2020, n°19-15.520)

An employee who was on sick leave due to serious depression nonetheless continued to participate in sports races, including half-marathons. The health insurance authority became aware of this and decided to suspend the payment of daily allowances and to request reimbursement from the employee, due to the employee carrying out an unauthorized activity. 

The employee challenged this measure, arguing that the activity he was engaged in was not prohibited and that his doctor had encouraged him to continue running. He relied on a certificate from his doctor drawn up after the event in support of this. 

The Social Security Court upheld the employee's claim. However, the Supreme Court held that it was mistaken in doing so, ruling that activities carried out during sick leave must be authorized in advance by the employee's doctor, and that authorization supplied after the activity had been undertaken did not meet the conditions.

Moral harassment: ‘bore out’ can constitute moral harassment (Paris Court of Appeal, 2 June 2020, RG n°18/05421)

An employee who was in a state of depression was placed on sick leave for 6 months and then dismissed for having a prolonged absence which caused disruption to the company and resulted in the company having to find a permanent replacement for him. 

The employee challenged his dismissal. In support of his action, he alleged that his employer was responsible for the deterioration of his working conditions and, consequently, of his health. More specifically, he claimed that he had been the victim of psychological harassment, including being side-lined, not being given real tasks or being given subordinate tasks which led him to suffer from bore-out syndrome 'for lack of tasks to perform'.

The Court of Appeal agreed. Stating that the employee's lack of activity and boredom were evidenced by medical certificates and data presented at the hearing, it decided that the state of bore out amounted to a form of psychological harassment.