Oct
30
French Labour law - Harassment by pornographic SMS at work: the ambiguity of the subordinate disqualifies sexual harassment (c. cass. September 25, 2019, No. 17-31171)

The sending of SMS (Short Message Service) licentious and pornographic, repeatedly, by a manager to its subordinate, justifies a dismissal for serious misconduct?

This is the question to be answered by the Court of Cassation.

In the judgment of September 25, 2019 (n° 17-31171), the Court of Cassation considers that the "game of reciprocal seduction" between the superior and the employee who pleaded to be harassed sexually, allowed to dismiss this qualification of harassment sexual.

This judgment is not published in the bulletin of the judgments of the Court of Cassation.

1) Recalling the facts

Engaged April 3, 2000 by the Transdev Ile-de-France as team manager to exercise the last state of the contractual relationship the functions of operating manager, MG was dismissed for misconduct on July 31st, 2014, for acts of sexual harassment.

In a judgment of October 11th, 2017, the Court of Appeal of Versailles considered that the dismissal for sexual harassment was not based on a serious misconduct and it condemned the company to pay to the employee sums as compensation compensation notice , paid vacation leave, severance pay, salary on lay-off and related vacation pay.

The company has appealed in cassation.

In a judgment of  September 25th, 2019, the Court of Cassation dismissed the company's appeal.

2) Decision of September 25th, 2019 of the Court of Cassation

2.1) The sending to his subordinate, from his business phone, of text messages with inappropriate and pornographic content, thus adopting a behavior making him lose all authority and any credibility can justify a dismissal disciplinary

The employer criticizes the decision to say that the dismissal is not based on serious misconduct and to sentence him to pay the employee sums as compensation for notice, paid vacation, severance pay, salary for layoff and related paid leave.

The Court of Cassation notes that "the employee, carrying out the duties of operating manager of a company with more than one hundred people, had, from his professional telephone, repeatedly and for two years, addressed to an employee whom he had acquainted himself at his place of work and of which he was the superior, text messages with inappropriate and pornographic content, thus adopting a behavior which makes him lose all authority and all credibility in the exercise of its direction function and therefore incompatible with its responsibilities, the Court of Appeal could deduce that these facts were related to the life of the company and could justify a disciplinary dismissal ".

2.2) The employee had sent, from his business phone, repetitively and durably between 2011 and 2013, text messages with inappropriate content and pornography to an employee with whom he had entered a game of mutual seduction, these facts were not constituting serious misconduct making it impossible to maintain the employee in the company

The employer argued:

- that the serious fault is that which makes it impossible to maintain the employee in the company;

- even assuming that he cannot receive the qualification of sexual harassment in the strict sense of the term, the behavior of a superior consisting in repeatedly and very insistently sending out licentious and even pornographic SMS messages from his professional mobile phone, constitutes a serious fault justifying an immediate departure of the employee of the company;

- that the Court of Appeal found that it was established that the employee had repeatedly and insistently addressed Ms. I ... SMS text content and even pornographic, the employee victim of this behavior having finally alerted his employer and deposited a handrail;

- it was still apparent from his findings that the employer had reacted immediately as soon as he became aware of the employee's severely misbehaved behavior, which he had immediately laid off and summoned to a prior interview, without therefore in any way tolerate the behavior in question;

- finally, the findings of the Court of Appeal that in the letter of dismissal the employer had taken care to inform the employee that "either your behavior is sexual harassment, or at least it is immoral and in total incompatibility with the functions you hold ";

- that by nevertheless excluding the existence of serious misconduct, the Court of Appeal violated Article L. 1234-9 of the Labor Code;

The Court of Cassation nevertheless rejects the appeal.

It states that "having noted, by own reasons and adopted, that the employee had sent, from his business phone, repeatedly and durably between 2011 and 2013, text messages with inappropriate content and pornographic to an employee with whom he had entered in a game of reciprocal seduction, the court of appeal could deduce that these facts did not constitute a serious fault making it impossible to maintain the employee in the company; that exercising the powers it has under Article L. 1235-1 of the Labor Code, it decided that these facts constituted a real and serious cause of dismissal ".

3) Analysis by CHHUM AVOCATS law office (Paris, Nantes, Lille)

3.1) Sending SMS to inappropriate and pornographic content = loses all authority and credibility to the manager → Justifies a disciplinary dismissal

First of all, the Court of Cassation considers that can justify a disciplinary dismissal, the sending by a superior to his subordinate, from his business phone, text messages with inappropriate content and pornographic, thus adopting a behavior making him lose all authority and all credibility.

Messages of a pornographic nature are relatable to the company and incompatible with the responsibilities of the supervisor.

It should be noted that the phone used by the manager to send pornographic text messages was his business phone.

It is likely that the solution would have been the same if the SMS had been sent with his personal phone, because the manager must be exemplary behavior.

3.2) Manager / subordinate mutual seduction disqualifies sexual harassment → serious misconduct cannot be accepted

Moreover, in this case, the operations manager had sent, from his business phone, repetitively and durably between 2011 and 2013, text messages with inappropriate and pornographic content to an employee with whom he had entered a game of seduction reciprocal.

The Court of Cassation following the argument of the Court of Appeal of Versailles considers that these facts do not constitute a serious fault making it impossible to maintain the employee in the company.

Article 1153-1 of the Labor Code states that "Any act of harassing any person for the purpose of obtaining favors of a sexual nature for his benefit or for the benefit of a third party is prohibited".

The Court of Cassation considers that there is a game of "mutual seduction" and not sexual harassment because of the attitude of the employee and the relationship context between the two employees.

This judgment must be approved.

Sources:

Court of Cassation September 25th 2019, n° 17-31171

https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000039188588

Porn at work: beware of dismissal for serious misconduct https://www.village-justice.com/articles/porno-work-attention-lawen-law-for-fault-grave-cass-October-2018,29747.html

 

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

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