The process of denouncing harassment at work can be particularly difficult to undertake and the employees can fear for reprisals.
1) Definition of sexual and moral harassment (harcèlement sexuel et moral) according to French Labour Code
Before doing so, it is necessary to recall the way in which the Labour Code defines sexual harassment (harcèlement sexuel) and moral harassment (harcèlement moral) in order to precisely define its contours.
1.1) Definition of moral harassment (harcèlement moral) (article L.1152-1 C. trav.)
Moral harassment (harcèlement moral) is defined by Article L.1152-1 of French Labour Code.
These are repeated acts that have the purpose or effect a deterioration of working conditions that may affect the employee's rights and dignity, alter his or her physical or mental health, or could jeopardize her / his professional future.
Moral harassment can for example be humiliations, vexatious remarks, sidelining (mise à l’écart), anxiety-provoking management methods (méthodes de management anxiogènes), etc.
The repeated nature of the facts is a necessary condition for defining harassment.
1.2) Definition of sexual harassment (harcèlement sexuel) (article L. 1153-1 C. trav.) Article L.1153-1 of the Labour Code lays down a double definition of sexual harassment, which can take two forms:
- Sexually-oriented remarks or behaviors (les propos ou comportements à connotation sexuelle) that either endanger the dignity of the victimized employee because of their degrading or humiliating nature, or create a situation that is intimidating, hostile or offensive;
- Any form of serious pressure, even if not repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party. In a recent judgment of May 17,th 2017 (Cass Soc., May 17,th 2017, n ° 15-19300), the Court of Cassation abandoned the criterion of repetition of words or behaviors with sexual connotations and specified that a single fact can be sufficient to constitute a situation of sexual harassment.
The fact (s) may occur outside the place and time of work, since they are directly related to labour relations (Cass Soc., Oct, 19th 2011, N°. 09-72672).
For example, the case of an employee who receives sexual messages on his personal phone from one of his colleagues outside his working hours.
It is sufficient that the behavior or behaviors have a sexual connotation, which does not require that they have an explicit and directly sexual.
1.3) Sexual harassment (harcèlement sexuel) versus sexist behavior (comportement sexiste)
The law n° 2015-994 of August 17th 2015 introduced the definition of sexist activity: "No one shall be subjected to sexist acts, defined as any act related to the sex of a person, with the object of or for the purpose of impairing his or her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment "(Article L.1142-2-1 of the Criminal Code).
Sexist activity is defined as any act related to the sex of a person, the object or effect of which is to undermine one's dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment.
It is part of the provisions on professional equality between women and men in Title IV of French Labour Code.
The law n°2016-1088 of August 18th 2016 then added three provisions to make more effective the struggle against sexist acts.
First, as part of its obligation to ensure the safety and mental health of employees, the employer must plan for prevention related to sexist behavior as well as for risks related to moral (harcèlement moral) and sexual harassment (harcèlement sexuel) (art. L.4121-2 French Labour Code).
In addition, the CHSCT can also propose actions to prevent sexist behavior.
If the employer refuses the actions proposed by the CHSCT, this refusal must be motivated (article L.4612-3 French Labour Code.)
Lastly, the company's internal regulations (règlement intérieur) must mention the provisions on the prohibition of sexist practices (article L.1321-2 French Labour Code).
1.4) Adjustment of the burden of proof of sexual or moral harassment (harcèlement sexuel ou moral)
Evidence of sexual harassment (harcèlement sexuel) is often provided by testimonials from people who have witnessed the offending remarks or behaviors.
However, it can be very difficult to obtain certificates from colleagues against their employer when they are still employed in the company.
However, whether it is sexual or moral harassment, the French Labour Code facilitates the employee's proof that he must provide evidence that could lead to the presumption of harassment.
It is then up to the employer to establish that the acts in question are extraneous to any harassment.
Otherwise, the harassment must be considered sufficiently established for the employee.
Nevertheless, in the absence of any evidence, the employee's request is doomed to fail.
However, it is often very complicated for the employee (s) victim of sexual or moral harassment (harcèlement sexuel et moral) to obtain any evidence proving the reality of its their denunciations.
It is by definition of words or behaviors that do not generally lead to the establishment of any writing.
2) Action before French Labour tribunal (Conseil de prud’hommes): a derogatory prescription
An employee who has been the victim of sexual or moral harassment may, in addition to reporting this situation to his employer, refer the matter to the Labour tribunal (Conseil de prud’hommes) within five years (section L.1471-1 (3) C. Work).
This action may have a twofold object, one of which relates to the awarding of damages and the other relating to the termination of the employment contract of the employee victim of harassment.
2.1) Need to report the harassment situation to its employer
Above all, the employee who suffers such acts, whether sexual or moral harassment (harcèlement sexuel ou moral), must imperatively report this situation to its employer.
Indeed, since a judgment of September 13th 2017 (Cass Soc., Sept. 13th 2017, N°15-23045), the Court of Cassation (Cour de cassation) considers that, to benefit from the protection against dismissal applicable in case of moral harassment (harcèlement moral) (see below), the employee must necessarily have denounced the facts by qualifying them as such.
In addition, only the employer is obliged to take all the necessary measures to put an end to any situation of harassment. (L.1153-5 French Labour Code)
Such measures may include a change in hierarchical attachment of the harassed employee, the establishment of psychological monitoring and the initiation of a disciplinary procedure against the "harasser" which may lead to a penalty up to and including dismissal.
In addition, in the event of inaction by the employer following his denunciation, this will subsequently allow the victim employee to claim compensation for this inaction.
It may also be very useful to report this situation to the Labour Inspector (inspection du travail), which may conduct an independent inquiry and order the company to take the measures it deems necessary.
2.2) Sexual or Moral Harassment (harcèlement sexuel ou moral) and Termination of the Employment Contract: Exclusion from the scale of compensation for unfair dismissal or dissmissal declared void and null according to Macron Ordinance of September 27nd 2017
In addition to compensation for the resulting harm, sexual or moral harassment (harcèlement sexuel et moral) can have a direct impact on the employee's contract of employment.
On the one hand, an employee who denounces harassment is protected against dismissal (Artcile L.1152-3 and L.1153-4 French Labour Code).
The sole limit to this protection depends on the bad faith of the employee, which is understood not only because the facts complained of are not established but because of the falsehood of the denunciation.
Any dismissal action related to acts constituting harassment is null and void.
In this case, the employee whose dismissal is linked to a situation of harassment that he has suffered or refused to undergo has an option:
- Either he requests his reinstatement within the company and the payment of the salaries he should have received between the date of his dismissal and that of his actual reinstatement;
- Either he does not apply for reinstatement, in which case he is entitled, on the one hand, to severance pay and, on the other hand, to an indemnity for all the damage resulting from the unlawful nature of its dismissal, which cannot be less to six months salary.
In this respect, Macron Ordinances expressly exclude the application of the scale of severance pay applicable to the labour tribunal in the harassment hypotheses.
It should be noted that it is the same for a mutually agreed termination (rupture conventionnelle) that would be signed in a context of harassment, the employee being in a situation of moral violence because of the harassment suffered at the time of signing (Cass Soc. Jan. 30th 2013, N°11-22332).
On the other hand, the employee who is the victim of sexual or moral harassment (harcèlement moral ou sexuel) who considers that this situation is an obstacle to the continuation of his employment contract, may request the judicial termination of his/her employment contract or take note of the breach.
If the facts of harassment are established, the judicial termination or the taking of an act will produce the effects of a null dismissal and the employee will benefit from the aforementioned option. (Cass Soc., Feb. 20th 2013, N°11-26560).
Lastly, an employee who has been the victim of sexual or moral harassment (harcèlement moral ou sexuel) may obtain compensation from the Industrial Tribunal for damages.
In this respect, the case law (see in particular the judgment of 17th May 2017 mentioned above) states that the employee may accumulate:
- A claim for damages as a result of his employer's breach of his obligation of security of result (Article L. 1153-5 Labour code.); and
- A claim for damages for the physical and mental harm suffered as a result of sexual harassment (harcèlement sexuel) (Article L. 1153-1 French Labour Code)
The employee who is the victim of sexual harassment (harcèlement sexuel) is therefore entitled to make a double claim for compensation provided that it establishes the existence of two distinct harms, one for sexual harassment in itself (for example, moral prejudice linked to humiliation suffered (préjudice moral lié à l’humiliation subie)) and the other linked to the employer's failure to fulfill the obligation of safety of result (for example, the sick leave that may have followed).
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