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No intent to harm required for claims for moral harassment under French law


Rédigé par Ellen FORREST-CHARDE le 8 Décembre 2009


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 UK and US law, moral harassment claims are legally recognised in France under Article L.1152-1 of the French Employment Code. In summary, this 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.

Significantly, this 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.

For a long while, French legal commentators and French courts have been divided as to whether intent to harm the employee is required, as well as the effect of harming the employee. Some clarity has been brought to this debate by the present case.

In Cass. Soc 10 nov 2009, Mrs X., a female employee who had worked for HSBC France in various capacities since 1965 was subjected to 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 such that she could not perform her job properly.

As a result, the employee brought a claim for moral harassment against her employer.

The Cour de cassation noted in its decision that moral harassment arises independently of the will of the employer. Therefore, there is no need for intent to harm to be proved. It also reiterated the notion of burden of proof resting on the employer, rather than the employee, who only has to establish the elements of moral harassment (this rule is also set out under the French Employment Code).

As a result of this decision, one might say that the floodgates have been opened for claims for moral harassment. Interestingly, on the same date, the Cour de cassation took another anti-employer approach by deciding that the implementation of certain management methods by a supervisor constituted moral harassment if they constituted repeated acts for the relevant employee having the consequences listed in Article L.1152-1.

Clearly, employers are subject to a greater risk, not only due to the onerous burden of proving that no moral harassment has arisen, but also as moral harassment is no longer the realm of “malevolent” employers but also includes those who, perhaps negligently, did not mean to cause moral harassment. 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.





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