A simple call to order is not a disciplinary sanction

Cass. Soc., March 20, 2024, n°22-14.465

An e-mail in which the employer merely asks the employee to modify his behavior and does not take any concrete action against him is no more than a reminder and does not exhaust his disciplinary powers. This was decided by the Court of Cassation in a ruling on March 20, 2024.

In this case, a sports advisor was suspended as a precaution and summoned to a preliminary interview in view of his dismissal. During this suspension, he received an email outlining a series of grievances against him. Subsequently, he was dismissed for serious misconduct for making derogatory and inappropriate remarks that questioned the honesty of his leaders.

Contesting this decision, the employee approached the labor court to have his dismissal annulled, arguing that it was a violation of his freedom of speech.

According to him :

– On the one hand, the e-mail received during the precautionary layoff constituted a warning and therefore a disciplinary sanction in that it set out the failings of which he was accused and instructed him to put an end to them,

– On the other hand, it considered that his comments, made in the context of strict exchanges between the employer and the employee or a colleague, did not contain any abusive, defamatory or excessive language, justifying dismissal for serious misconduct.

The Court of Appeal, endorsed by the French Supreme Court, rejected the employee’s argument.

Firstly, the court noted that, through the disputed e-mail, the employer had merely asked the employee to show him respect, to stop being aggressive, making moral judgments, and spreading rumours and other disparaging remarks to customers and other employees, without any action being taken against him.

In this sense, according to the high judges, this e-mail constitutes at most a “call to order” that does not exhaust the employer’s disciplinary power.

Secondly, the Court of Appeal noted that the employee’s remarks were disparaging and inappropriate, and that they called into question the honesty of the company’s directors, thus constituting an abuse of his freedom of expression. She also pointed out that the employee could not justify these remarks by arguing that they were well-founded, which in this case had not been demonstrated.

The dismissal for gross misconduct was therefore perfectly justified.

Note: As a reminder, under the non bis in idem principle, the same fault cannot be penalized twice.

This ruling illustrates a measure that was considered – here – as a mere reminder and not a sanction.

What, on first reading, appears to be the opposite of recent decisions, such as :

-An appraisal report containing specific grievances: the employer criticized the employee for his harsh attitude and lack of openness to change, which had given rise to a complaint from suffering employees, serious malfunctions linked to electrical safety and failure to comply with regulatory standards and urged him in an imperative and comminatory manner and without delay to make a complete and total change (Cass. Soc., February 2, 2022, no. 20-13.833);

-An e-mail from the employer formulating shortcomings in internal procedural rules and imperatively inviting the employee to comply (Cass. Soc., April 9, 2024, n°13-10.939);

The difference between a reminder and a warning would seem to be in the firmness of the tone used, and in urging the employee to change his or her behavior “without delay”.

However, the difference is particularly “subtle”, leading to different solutions in a similar, if not identical, situation.

However, it is important to note the particular “subtlety” of the difference, which leads to different solutions in a similar, if not identical, configuration, suggesting that great caution should be exercised before sending an e-mail/courier to an employee when a formal sanction is envisaged. Ideally, the employer will hold back his pen and reserve the formulation of his grievances for the letter of notification.