A few years ago the courts had ruled that a letter sent by an employer to an employee setting out grievances against the employee and inviting the latter to change behavior had the value of a warning, with the result that the same facts could not justify a new sanction (Cass. Soc. May 26, 2010, no. 08-42.893).

Pursuant to a ruling on January 30, 2013 (no. 11-23.891), the French Supreme Court (Cour de Cassation) pursued this line of reasoning by considering that, in the presence of acts qualified as wrongful, the internal procedure whereby the company kept the employer’s request for explanations and the employee’s written reply in the employee’s personal records is a measure that constitutes a disciplinary sanction.

This decision is surprising in that it confuses investigating misconduct and sanctioning misconduct. The upshot is that the employer should be careful to either immediately sanction misconduct or else not keep any written records of the investigation in the employee’s personal records.