French employment law strictly prohibits acts of moral harassment within a company, employers being required to take all measures necessary to prevent such situations from occurring in the first place. Applicable sanctions in the event of breach of such prohibition can be particularly severe since the employer can face penal sanctions as well as having any act taken in violation of such prohibition being declared null and void. The victim of such acts can also seek the civil liability of the employer and obtain the payment of damages for any loss suffered as a result of the harassment.
Employers are also subject to the more general obligation of ensuring the protection of their employees’ health and safety (duty of care), the mere breach of such obligation triggering the liability of an employer even if there is no fault on its part. In this context, can an employer be held liable cumulatively both for the breach of its duty of care and for the compensation of the consequences resulting from the moral harassment?
In a ruling of the Supreme Court dated 19th November 2014, an employee was placed on sick leave during 2 months as a result of a conflict situation with his superior who had displayed an aggressive behavior toward his subordinate, to the point of insulting him in front of his colleagues during a meeting. The employer indicated that measures were taken immediately after the incident took place which consisted in the organization of a meeting with the purpose of calming the situation and during which the superior apologised to the employee. In addition, a cell was established in order to tackle the psychosocial risks within the company and the employee victim of harassment was transferred so as to avoid any contact with his former superior. Despite all the employer’s efforts, the employee resigned from the company and subsequently lodged a claim before the employment tribunal requesting the payment of damages resulting from the moral harassment.
The Court of appeal found in favor of the employee and ruled that a distinct indemnity should be awarded to him as a result of the employer’s breach of its duty of care in addition to damages being paid to him in compensation of his loss resulting from the harassment. Despite the employer’s argumentation that the same loss could not be compensated twice, the Supreme Court upheld the decision of the Court of Appeal and considered that the employer is ipso facto in violation of its duty of care when an employee is harassed by another employee in the workplace, regardless of the measures it has taken to put an end to such misconduct.
This decision of the Supreme Court is consistent with prior case law that allowed an employee to accumulate two sets of indemnification resulting from the harassment he/she has suffered in the workplace. The decision should therefore serve as a reminder that the consequences of an occurrence of harassment in the workplace can expose the employer to significant financial liability, with the specific emphasis that a portion of such liability may be due even though the employer has taken effective measures immediately following the occurrence of such harassment. It is also worth noting that the employer’s efforts to remedy the situation will still be taken into account when the judges assess the amount of damages to be paid in compensation of the consequences of the harassment. Such efforts were particularly considered by the Court of appeal in this case with the effect of mitigating the employer’s responsibility in this respect. In conclusion, although special care must be taken to do the utmost to end a situation of moral harassment, the employer would also be wise to implement an effective anti-harassment policy to prevent such situation from occurring in the first place and thus avoiding to the greatest extent possible the related financial consequences.