This was the solution adopted by the Labour Division of the French Supreme Court in the case of an employee who had worked for a company for more than 22 years, during which time she had always given her employer satisfaction.
This employee, who was initially hired in 1996 as a secretary,
had even been promoted to marketing assistant in 2010.
Despite her previously impeccable career record, the employee was
notified of her dismissal for gross misconduct on 2 May 2018, a
dismissal that she contested by bringing an action before the
industrial tribunal, seeking to have it requalified as a dismissal
without real and serious cause.
Dismissed by the Paris Court of Appeal, the employee appealed to the French Supreme Court, arguing in particular that, as she was highly regarded by her superiors for the quality of her work and her relations with her superiors and colleagues, and had never been the subject of the slightest reproach in her twenty-two-year career, she attracted the jealousy of other employees and was perceived as the employee 'to be brought down'.
In support of her appeal, she also pointed out that dismissal for serious misconduct had to be based on precise and materially verifiable factors, personally attributable to the employee, of such importance as to make it impossible for her to remain in the company, and that in any event, serious misconduct had to be assessed in concrete terms, taking into account the employee's seniority, professional qualities and disciplinary record.
She therefore complained that, in ruling that her dismissal was based on serious misconduct, the lower courts had held that she had behaved in an inappropriate and harassing manner, without taking into consideration, in assessing the legitimacy of the dismissal, her previous conduct, which had been free of any reproach since she was recruited in 1996, and the fact that, in her twenty-two years of service, she had never been the subject of the slightest disciplinary sanction.
However, the Social Division (Cour de cassation, Social Division, 14 February 2024, No. 22-23.620) did not follow this line of argument and upheld the position of the Court of Appeal, which found that the employee had behaved in a way that manifested itself in criticism, mockery, verbal and physical violence, destabilisation of professional relations and a form of manipulation that went beyond simple jokes between colleagues, and that the employee's ambivalence was a source of suffering at work.
In practice, the judge takes account of factual circumstances when assessing misconduct, such as the employee's length of service, and the fact that it was an isolated act or potential provocation, which in some cases removes the seriousness of the misconduct, as shown by the case law of the Social Division, which has on numerous occasions ruled out serious misconduct when the act was exceptional and the employee's length of service was substantial (Cass. Soc, 13 June 20021, No. 99-43.814), employees cannot hide behind a long career in the company and an absence of disciplinary history in the case of particularly serious misconduct.
In this case, the employee's exemplary career and seniority were not sufficient to mitigate the seriousness of the acts committed by her, which consisted of toxic and harassing behaviour.
This decision is therefore perfectly in line with the recent jurisprudential trajectory of the Social Division, which took the same position in the case of physical violence (Cass. Soc., 9 June 2021, N°20-14.365), and degrading remarks of a sexual nature made against a work colleague (Cass. Soc., 27 May 2020, N°18-21.877).
In short, employers are once again being urged to look after the well-being of their employees by preventing psycho-social risks, which undeniably include psychological harassment.
Originally published 11 June 2024
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