The legal context
French employment law strictly prohibits situations of moral harassment in the workplace, the employer being required to take all necessary measures to prevent such situations from occurring. The employer can, for example, be held liable if acts of moral harassment actually take place, as the employer can then be held to have failed to comply with its duty to ensure the protection of its employees’ health and safety.
In this respect, employers are generally entitled to discipline, and even dismiss, employees who commit acts of moral harassment. However, although moral harassment is in principle characterized in situations of repeated acts of bullying in the workplace, is it possible to dismiss an employee who participates in the hazing of a colleague?
In a recent decision of the Supreme Court dated 8th October 2014, a sales manager and several other employees threw ketchup, flour and water at a colleague finishing her working day and wrapped her car with toilet paper. Immediately thereafter, they entered the company’s premises in order to collect the necessary material to clean windows stained as a result of the incident. Following this event, the employer dismissed the sales manager for gross misconduct considering that these acts were humiliating and degrading to the victim’s dignity as well as compromising the company’s security. The dismissed employee subsequently lodged a claim for unfair dismissal.
The Court of Appeal held that the dismissal was unfair since the employer did not actually prove that the incident constituted a violation of the victim’s dignity and posed a threat to the company’s security, in particular on the basis that (i) it was neither established that the incident was of a violent and aggressive nature, nor proven that it was initiated or facilitated by the employee, and that (ii) the employee had only entered the company’s premises with the intention of cleaning what they had soiled. The Supreme Court upheld the Court of Appeal ruling and considered that the appellate judges had rightly inferred from these findings that the dismissal was not based on a cause of a sufficient nature to justify the termination of the employment.
This ruling could be understandably viewed as undermining the disciplinary authority of the employer, especially since it could be held accountable in the absence of reaction on its part. However, the employer could not have argued the existence of a situation of moral harassment since the characterization thereof requires repeated actions and such condition was not met in this case. In addition, the fact that such incident took place outside the normal working hours of both the employee and the victim as well as outside the company’s premises certainly minimized the seriousness of the employee’s behavior when considering the justification of her dismissal. In any event, it appears that the main element to be taken into consideration in such situations is the impact on the victim’s dignity. If such impact had been proven, the employer would have been entitled to terminate an employee even though moral harassment had not occurred.