On April 7th, 2021 (RG n ° 18/08620), the Paris Court of Appeal overturns the decision of the Paris Labor Council dated June 27, 2018 (RG n ° 16/12401) and declares the nullity of the dismissal of the operating technician because of discrimination linked to his state of health.
In addition, it orders the reinstatement of the operating technician of the Palais omnisports de Paris-Bercy company and orders the latter to pay an eviction indemnity of 177,543.90 euros for the period from August 26, 2016 to 10 February 2021, and damages in the amount of 10,000 euros for the discrimination he suffered.
In total, he obtains the sum of 193,358.76 euros gross.
1) Reminder of the facts
Mr. X was hired by the operating company of the Palais Omnisport de Paris-Bercy, first as a temporary employee, then, from September 1, 1991, as a general-purpose operating technician, executive status, position 2.1, coefficient 115.
The Palais omnisports de Paris-Bercy company has more than 10 employees, and applies the national collective agreement for technical design offices, consulting engineering firms and consulting companies (SYNTEC) of December 15, 1987.
On April 28, 2016, Mr. X was surprised by the video surveillance system urinating near his workplace.
On May 10, 2016, he was summoned for disciplinary action up to and including dismissal.
Mr. X was dismissed for real and serious cause by a letter of May 19, 2016.
Requesting the nullity of his dismissal and considering himself a victim of discrimination because of his state of health, Mr. X appealed to the industrial tribunal on December 13, 2016.
By judgment of June 27, 2018, the Paris Labor Court rejected the request for nullity of the dismissal, and ordered the company of the Palais omnisports de Paris-Bercy to pay Mr. X 20,000 euros in compensation for dismissal without real and serious cause and 700 euros under Article 700 of the Code of Civil Procedure.
The employee was dismissed for the remainder of his claims, the employer for his counterclaim, and the latter was ordered to pay costs.
By declaration of July 10, 2018, Mr. X appealed against the judgment notified on July 3, 2018.
In his latest conclusions sent electronically on November 20, 2020, Mr. X asks the court to set aside the judgment referred in all its provisions, asprincipal to declare the dismissal null, to order his reinstatement in the company, and to order the latter to pay:
- 195,298.29 euros net as compensation due to the nullity of his dismissal, corresponding to the amount of wages and related paid leave that he would have received between the date of expiry of his notice (August 24, 2016) and the date of his reinstatement stopped on February 10, 2021, the day of the hearing, except to be improved on the day of his effective reinstatement;
- 30,000 euros net in damages for discrimination due to his state of health.
In the alternative, he asks the court to confirm the judgment referred in that it says the dismissal without real and serious cause, to reverse it moreover and to condemn the company to the payment of 140,000 euros net by way of compensation for dismissal without real and serious cause.
In any event, he requests the court to provide a summary pay slip in accordance with the allowances that will be granted to him as well as, where applicable, a work certificate and a corrected employment center certificate, under penalty of 50 euros per day of delay, reimbursement of unemployment benefits received at Pôle Emploi within the limit of 6 months, the benefit of legal interest from the notification of the judgment, the payment of 4,000 euros for the article 700, and the company to pay the costs.
In its latest conclusions sent electronically on December 23, 2018, the Palais omnisports de Paris-Bercy company asks the court for the main confirmation of the decision referred in that it ruled that the dismissal was not due to his state of health, to invalidate him moreover, to dismiss the employee of all his requests and to condemn him to the payment of 2,500 euros under article 700 of the code of civil procedure.
In the alternative, she requests the reduction of the amount of damages for dismissal without real and serious cause to the sum of 20,000 euros.
The investigation was closed on January 5, 2021, and the case was set to be argued on February 10, 2021.
2) The decision of the Paris Court of Appeal of April 7, 2021
By a decision dated April 7, 2021, the Paris Court of Appeal:
. Reverses the judgment;
Resolving again and adding thereto:
. Declare the dismissal of Mr. X to be null;
. Orders his reinstatement;
. Sets the average gross salary of Mr. X at the sum of 3,314.86 euros per month.
Consequently, condemns the company of the Palais omnisports de Paris-Bercy to pay Mr. X the following sums:
- 177,543.90 euros for eviction compensation from August 26, 2016 to February 10, 2021;
- 3,314.86 euros per month from February 10, 2021 until final reinstatement;
- 10,000 euros in damages for discrimination.
. Holds that these sums will be matched with interest at the legal rate from the delivery of this judgment;
. Reject all other requests.
The company of the Palais omnisports de Paris-Bercy will be ordered to pay the costs and pay Mr. X the sum of 2,500 euros under Article 700 of the Code of Civil Procedure.
In total, the versatile operating technician from the Palais omnisports de Paris-Bercy company obtains the sum of 193,358.76 euros gross.
2.1) On the rejection of the dismissal of the claim for damages for discrimination due to the state of health
The Paris Court of Appeal affirms that "Article 564 of the Code of Civil Procedure provides that on pain of inadmissibility automatically raised, the parties may not submit to the court new claims except to oppose compensation, dismissing adverse claims or adjudicating questions arising from the intervention of a third party, or the occurrence or revelation of a fact.
The same code specifies in its article 566 that the parties can add to the claims submitted to the first judge only the requests which are the accessory, the consequence or the necessary complement.
The claim for damages for discrimination on the basis of medical condition was brought before the first judges; the fact that the appellant increased the quantum of his claim before the court cannot constitute a new claim; the plea of inadmissibility is consequently rejected. "
2.2) On the invalidity of the dismissal due to discrimination linked to the state of health of the POPB technician
The Paris Court of Appeal recalls that "the dismissal, which sets the limits of the dispute, states:
“As you know, you were hired as a telephony technician, effective September 1, 1991.
Since September 1, 2015, you have held the position of versatile technician, within the “sound”, “light” and “video” control rooms of the Company.
On April 28, 2016, at 4:32 p.m., our security staff caught you urinating in an electric cable passageway in the immediate vicinity of emergency exit no. 3301 in the "media" area.
Such behavior is of course contrary to the behavior that any company can expect from any employee.
In addition, the facts observed could have had serious and detrimental consequences for the company:
- in terms of hygiene and safety: you have urinated in a chute used for the passage of electric cables;
- in terms of image: you relieved yourself at a passageway in the arena where, at any time, service providers or customers were able to surprise you.
Such facts are detrimental to the proper functioning of our establishment and the explanations you provided to us during the interview did not change our assessment of your behavior.
During this interview, you produced a medical certificate from your attending physician
dated May 9, 2016.
This certificate attests that you suffer from a condition which remains to be diagnosed by a blood test and additional examinations, and which does not allow you to hold your urine for long.
In support of this certificate, you explained to us that you had been on the phone with a company provider for too long and could not hold you to the nearest restroom.
If we hear the medical explanations provided, we believe that you should have alerted your supervisor immediately after the incident, which you did not do, and the cleaning staff.
In addition, you have not approached the occupational physician so that he can check your suitability for this position, or adapt your position, if necessary.
In this context, we hereby notify you of your dismissal for real and serious cause ”.
The Paris Court of Appeal continued by declaring that, according to “article L.1132-1 of the Labor Code, no employee may be dismissed or be the subject of a discriminatory measure, direct or indirect, due to their origin, their sex, their customs, their sexual orientation or identity, their age, their marital status, or their pregnancy, their genetic characteristics, their belonging or non-belonging, true or supposed, to an ethnic group, a nation or a race, of its political opinions, its trade union or mutualist activities, its religious convictions, its physical appearance, its family name or because of its state of health or its handicap.
It is recalled that in application of the provisions of article L.1132-4 of this same code, any act taken in disregard of these provisions is null.
Article L.1134-1 of the Labor Code also provides that when a dispute arises due to disregard of these provisions, the employee presents factual elements suggesting the existence of direct or indirect discrimination.
In view of these elements, it is for the defendant to prove that its decision is justified by objective elements unrelated to any discrimination.
Mr. X, who requests the nullity of his dismissal and his reinstatement, maintains that he was dismissed because of his state of health, the facts alleged in the dismissal letter being according to him directly related to the urinary difficulties of which he has reports to the employer during the preliminary interview.
He produced for debate the medical certificate from his attending physician of May 9, 2016, which indicated urinary difficulties which justify an upcoming blood test, which he produced to the employer during the interview prior to the dismissal on May 10.
These facts alone suggest the existence of discrimination.
However, the employer expressly recognizes in the letter of dismissal that he was informed before the dismissal, by the production of the medical certificate of May 9, 2016, of the state of health of the employee which could have a direct or partially direct link with the alleged facts, the company therefore not being able to dismiss him without having previously had his incapacity declared by the occupational physician.
It follows that the employee was the victim of a discriminatory measure related to his state of health; by reversing the judgment, the dismissal must be declared void. "
2.3) On the consequences of the dismissal and the attack on the health protection of the POPB technician
The Paris Court of Appeal affirms that "the employee, whose dismissal is canceled, is entitled to request his reinstatement.
In the absence of demonstration by the employer of the absolute impossibility of doing so, it will be
Mr X asks for his reinstatement, which will therefore be ordered.
The employee, whose dismissal has been annulled for violation of the protective rules attached to a fundamental right of constitutional value, the attack on the protection of his health, is entitled to claim under his eviction the payment of the reminder of wages due. between the date of dismissal and the effective date of reinstatement, without deduction of the sums received as replacement income during this period, the gross monthly salary of 3,314.86 euros not being usefully contested by the company du Palais omnisports of Paris-Bercy.
Consequently, by reversing the judgment, he can claim, on the basis of a gross salary of 3,314.86 euros per month for the period from 25 August 2016 to 10 February 2021, an eviction indemnity of 177,543.90 euros. , the eviction period not giving rise to the right to paid vacation, in addition to the payment of an eviction indemnity equal to the time of the remuneration he should have received, of 3,314.86 euros per month between the 10 February 2021 and final reinstatement.
Mr. X, victim of discrimination because of his state of health, is entitled to claim compensation for separate damage in this regard, which will be set at the sum of 10,000 euros. "
2.4) On other requests
The Paris Court of Appeal declares that, "in view of the date of the dismissal, there is no order to order the reimbursement of the employment center indemnities.
Mr. X's request is rejected on this account.
A summary payslip in accordance with this judgment will be issued by the employer without recourse to the penalty payment.
In equity, the employer will be ordered to pay Mr. X the sum of 2,500 euros under Article 700 of the Code of Civil Procedure.
Being unsuccessful in the main proceedings, he will be ordered to pay the costs.
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Annaelle ZERBIB juriste M2 DPRT Paris Saclay
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 34 rue Pétrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083