A manager (the director of a bank) had set up a professional meeting with one of his female employees outside regular work hours in a hotel room. The manager was terminated on grounds of gross misconduct (ie, immediate termination without notice or severance indemnity) after the female employee complained.

The manager challenged this decision on the grounds that it was based on facts which were unrelated to work and belonged in the private sphere. Moreover, he claimed that the subordinate employee had freely accepted the invitation, and that the reason why the meeting had taken place in a hotel room was because the hotel restaurant had been full.


The Supreme Court rejected these arguments and ruled that the employer was justified in its decision to terminate the employee on the grounds of gross misconduct, since:

"the fact that an employee had used his managerial position in view of obtaining sexual favours from another employee is considered as sexual harassment even though such behaviour took place outside working hours and outside the workplace".(1)


This decision confirms the differences between the definitions of 'moral' and 'sexual' harassment, which do not require the same conditions to be fulfilled.

Both types of harassment are prohibited by statutory rules included in the Labour Code.

According to Article L1152-1, 'moral harassment' is repeated harassing behaviour aimed at or leading to a deterioration of an employee's working environment, and which is likely to affect the employee's rights and dignity, alter the employee's physical or mental health or jeopardise the employee's career.

According to Article L1153-1, 'sexual harassment' is harassing behaviour aimed at any person in order to obtain favours of a sexual nature in one's own interests or in another person's interest.

The French courts have confirmed in the past that an isolated incident cannot be considered as moral harassment, irrespective of the nature of that incident. Repeated facts (eg, insults and public humiliation, withdrawal of duties and responsibilities, orders to isolate an employee from the rest of the team) are required in order to be considered as genuine moral harassment.

Moreover, the Supreme Court recently held that moral harassment could be qualified irrespective of the hierarchical relation between the two employees – that is, an employee can be sanctioned for having repeatedly bullied his or her manager(2) or another employee of the same level in the organisation.(3)

On the other hand, this new Supreme Court decision seems to confirm that sexual harassment can be considered and sanctioned as such only when performed by an employee over a subordinated employee by "abusing his or her hierarchical authority".

In this case, the bank manager had 26 years' seniority in the company and no previous disciplinary issues. Such elements are usually taken into consideration by the French courts in order to mitigate the company's decision and find that the employee should have been dismissed for real and serious cause, as opposed to gross misconduct, which is more severe.

However, in this specific case, the Supreme Court considered the employee's seniority and history to be irrelevant, focusing only on the fact that he had obviously abused his authority towards the subordinate employee, for whom it had been difficult to refuse to attend a professional meeting irrespective of the time and location chosen by her manager.

Under the same circumstances, if the manager had exhibited the same behaviour towards a female manager of the same hierarchical level, it is likely that the Supreme Court would not have validated the manager's termination for gross misconduct.

Meanwhile, on May 4 2012 the Constitutional Court ruled that the provisions of the Criminal Code on sexual harassment (Articles 222-33) are insufficiently precise and invalidated them with immediate effect. These provisions are thus no longer enforceable, and for the time being there are no further provisions which define and penalise sexual harassment under French law.

Thus far, however, the ruling has not affected the Labour Code provisions relating specifically to sexual harassment at work. Those provisions thus remain enforceable until either:

  • a plaintiff challenges the validity of these provisions before the Constitutional Court; or
  • the new government implements new legal provisions which define sexual harassment more precisely, both in in general and in the work context.

This second option is the most likely, as the newly elected President François Hollande has already announced that new legislation will be implemented shortly.

For further information on this topic please contact Nathalie Devernay at Bird & Bird AARPI' by telephone (+33 4 78 65 60 00), fax (+33 4 78 65 60 11) or email ([email protected]).


(1) Supreme Court ruling of January 11 2012 (10-12930).

(2) Supreme Court ruling of December 6 2011 (10-82266).

(3) Supreme Court ruling of February 3 2010 (08-44019).