On 10 November 2009, a landmark case was handed down by the French Supreme Court (“Cour de cassation”) which has significantly opened the way for future claims for moral harassment (“harcelement moral”) in France.

Although a comparatively unknown concept in English law, moral harassment claims are legally recognised in France under Article L.1152-1 of the French Employment Code. Broadly speaking, the Article defines moral harassment as a situation where an employee is subjected to repeated acts which may result in degradation of his working conditions that might undermine his rights and dignity, affect his physical or mental health or jeopardise his professional future – effectively ordinary bullying without the need for any discrimination component.

Significantly, the legal definition does not specify whether an intention to harm on the part of the employer is a prerequisite for the recognition of a claim. Legal commentators and the French courts have long been divided as to whether intention to harm the employee is required, as well as actual harm. Some clarity has now been brought to this debate by this case.

Mrs X. worked for HSBC France and was subjected to what the Court found to be repeated bullying and humiliation from her line managers. The actions complained of included moving the location of her office when she was absent without informing her and without good reason save for “branch reorganisation”, and forcing new and different roles on her without providing the requisite training with the result that she could not perform her job properly. As a result, she brought a claim for moral harassment against HSBC.

The Supreme Court noted in its decision that moral harassment arises independently of the will of the employer and that therefore there is no need for intention to harm to be proved. It also reiterated the concept of the burden of proof resting on the employer, rather than the employee who only has to establish the factual elements of moral harassment (this rule is also set out under the French Employment Code).

Though logical, in the sense that a person’s intention is easy to deny and almost impossible to prove, this decision could result in the floodgates being opened for claims for moral harassment in France. Interestingly, on the same date, the Supreme Court took an anti-employer approach by deciding in another case that the adoption of certain management methods by a supervisor constituted moral harassment if they constituted repeated acts having the adverse impact described above on the claimant employee.

Clearly French employers are now subject to a greater risk as moral harassment is no longer the realm of “malevolent” employers but also includes those who did not mean to cause moral harassment but were just not very good employers. In the current economic climate, when the employer-employee relationship is at its most strained, it seems that the French courts will see many more actions being brought by employees. It must be hoped that they will take a suitably robust view both of the level of impact required to satisfy the harassment definition and of the compensation to be awarded, especially where the employee suffers no actual loss as a result of it.