French employers are now obligated to investigate any allegation of harassment, even where the employee does not produce any evidence. This is the position taken by the French Cour de Cassation in November 27, 2019, case
An employee, while on sick leave, wrote to her employer on October 14, 2011, stating that her health problems were work-related. On December 12, 2011, she wrote a second time complaining of acts of moral harassment committed by her supervisor. Nevertheless, the employee was dismissed for professional incompetence on January 31, 2012.
Believing her dismissal was the result of her complaints of harassment and therefore void and invalid, the employee brought an action before the French labor court. She sought recognition of the nullity of her dismissal and to be awarded damages because of (i) the prejudice suffered as a result of the moral harassment and (ii) the failure to comply with the obligation to prevent acts of harassment.
The Court’s Decision
The French labor court noted that the employee did not establish facts that allowed the presumption of moral harassment, and therefore dismissed her harassment claims. The judges also ruled that, in the absence of allegations of moral harassment, the employer could not be blamed for failing to conduct an investigation.
The French supreme court overturned this decision, stating that the obligation to prevent professional risks, such as harassment, and the prohibition of harassment acts are two separate obligations.
The employer has a duty of security, which requires it to take the necessary measures upstream to prevent, as in this case, harassment. If harassment occurs, it is the employer’s responsibility to stop it without delay.
Therefore, employers should note that in the event of a complaint of harassment by an employee reporting acts of harassment, employers should initiate an investigation immediately, even if the complaint could be considered unsubstantiated. This investigation allows employers to document the employer’s reaction, verify the allegations, and justify any the decisions to take action.
Written by Marie Millet-Taunay of Ogletree Deakins.
© 2020 Ogletree, Deakins, Nash, Smoak & Steward, P.C.