In a significant change of direction, the French Supreme Court has held that an employer will not be liable for workplace harassment where it puts in place specific measures prior to and after the harassment taking place. This is a significant change from the previous harassment Court decisions, which were highly criticised by employers and held that health and safety were sacrosanct, so an employer would automatically be liable for any harassment at work committed against an employee.
Workplace harassment - high risks for employers
Harassment arises when an employee is subjected at work to repeated actions, whether from a member of staff or agents, which purpose or effect cause detriment on the employee’s rights and dignity, his/her physical and mental health and his/her professional future. Traditionally, if such a situation arises, an employer, even if not directly involved in the harassment, faces two main risks for failing to provide a safe working environment: on rare occasion, a criminal liability (up to 3 years of imprisonment and 45,000 €) and more frequently civil sanctions - employers will be liable to fully compensate the losses incurred by the employee (damages, loss of earnings, injury to feelings) and reimburse any allowance received from the French State. Note that such liability applies for both moral harassment (“bullying”) and sexual harassment, and that any termination measure would be null and void.
The new approach - Air France
The trend to a more employer-friendly approach stems from last year’s decision of the French Supreme Court of 25 November 2015. The case concerned an airline pilot who alleged that his employer, Air France, was liable for mental health issues occurring several years after the events of 11 September 2001. The Supreme Court rejected his claim on the basis that Air France had taken adequate steps to safeguard employees’ mental and physical health. The Court was swayed by the fact that Air France had provided continuing medical and psychological support to its staff over this period.
Clarity for employers
It was unclear whether the Air France decision would be applied to cases of harassment at work, where the French Courts have traditionally applied a principle of strict liability. The Supreme Court has now resolved this question in a decision of 1 June 2016. It held that an employer would not be liable where it has taken specific steps to prevent the harassment taking place and stop it from occurring again.
Harassment - the employer’s defence
To avoid liability for harassment at work, the Supreme Court has confirmed that employers must:
- Before an act of harassment, take the preventive measures set out in the French Labour Code (articles L 4121-1 et L 4121-2). This means training employees to recognise and tackle harassment, putting steps in place for employees to raise harassment and get help; and
- After the harassment takes place and as soon as they become aware of it, whether formally or informally, take immediate steps to prevent a recurrence. Although the decision does not provide any examples, steps could include carrying out an investigation without delay, removing the employee from contact with the alleged harasser and providing medical and psychological support.
Two-pronged approach for employers
It is now clear that it is not enough to refer the employee to a handbook or internal regulations. Instead, employers need a two-pronged approach:
Firstly, employers need to actively roll out anti-harassment training for employees as part of their health and safety programme. This would include awareness training, written guidelines, information notices posted in the workplace, appointing anti-bullying champions in the workplace, and regular updates for new hires and existing staff.
Secondly, employers should put in place anti-harassment policies that build in a reporting mechanism and enable immediate intervention. The goal is to capture harassment complaints when they are first raised, and to escalate them to the appropriate functions so that action can be taken to stem the harassment. The decision of 1 June 2016 makes it clear that employers need to be more proactive, working if necessary with the employee representatives, such as involving the Health and Safety Committee and the Works Council where such representation exists.
Employers who do not take both of these steps will be at risk, and the consequences can be costly.