The employee no longer has to expressly qualify the facts as “moral harassment” when reporting them 

Cass. Soc., 19 April 2023, 21-21.053 

An employee was dismissed for serious misconduct for having sent a letter denouncing the behavior of her line manager to the Board of Directors of the association that employed her. She referred to several facts which, according to her, had led to the deterioration of her working conditions, without expressly qualifying them as moral harassment. 

She applied to the French Conseil de prud’hommes to have the dismissal declared null and void, on the grounds that she had been subjected to and reported acts of moral harassment, in accordance with Articles L. 1152-2 and L. 1152-3 of the Labor Code, which prohibit, on pain of nullity, the dismissal of an employee for having been subjected to, refused to be subjected to, or reported or testified to repeated acts of moral harassment. 

The Court of Appeal granted his request; and the employer appealed to the Court of Cassation on the grounds that the High Court had since 2017 made the protection claimed conditional on the literal qualification of the acts of moral harassment by the employee himself, at the time of the denunciation (Soc, 13 September 2017, n°15-23.045), a decision reiterated on several occasions. 

In a decision of 19 April 2023, the Court of Cassation reversed its case law, holding that “it is now appropriate to hold that an employee who reports acts of moral harassment cannot be dismissed on this ground, regardless of whether he or she did not describe the said acts as moral harassment at the time of reporting them, except in cases of bad faith, which can only result from the employee’s knowledge of the falsity of the acts he or she is reporting.” 

The High Court justified this new development of its case law, in the notice attached to the judgment, by aligning with its case law since 2017: 

  • First of all, it decided in 2020 that it was possible for the employer to invoke the bad faith of the employee denouncing facts of harassment before the judge when he had not done so in the letter of dismissal, in order to justify the sanction taken despite the legal protection (Soc, 16 September 2020, n°18-26.696). A question could therefore arise as to the equality of arms, given the requirement imposed on the employee, and the apparent “flexibility” granted to the employer. 
  • Furthermore, in 2022, it ruled that the dismissal of an employee dismissed for a reason related to the non-abusive exercise of his freedom of expression is null and void (Soc, 16 February 2022, n°19-17.871), which created a disparity with the regime applied to employees who had reported harassment in good faith, who were subject to an additional condition of exact qualification, which was no longer justified. 

However, the Court of Cassation qualified the scope of this decision of 19 April 2023, specifying that “this solution only applies if the employer could not legitimately be unaware, on reading the written document sent by the employee, which motivated his dismissal, that the latter was indeed reporting harassment“. It therefore entrusts the judges with the task of verifying the “obvious nature” of such a denunciation in the employee’s writing, which it did in the case before it. 
It seems that the mere fact that the employee had mentioned a deterioration in her state of health (an element contributing to the characterization of moral harassment) was sufficient for the High Court.