This case is symptomatic.
An employee, legal officer (Groupe Publicis) had been dismissed, after 32 years of services, for retracting the internship offer made to a candidate!
The legal officer challenged its dismissal before the Labour Tribunal (conseil de prud’hommes).
On a decision of April 5th, 2018, the rights defender (Défenseur des droits) considered that Ms. X, legal representative, is discriminated because of her state of health and the company failed to protect her physical and mental health.
The rights defender (Défenseur des droits) presented its observations before the Labour Tribunal (conseil de prud’hommes). The rights Defender issues a ruling on discriminatory harassment suffered by the Publicis employee.
In a judgment of July 27th, 2018, the Labour Tribunal of Paris (Management Section - Section encadrement) condemned Re:Source (Publicis Group) to pay her 162,000 euros for null and void dismissal, for damages for discrimination linked to state of Health, damages for violation of health security.
The decision is final.
Ms. X was engaged from May 2nd to October 31st, 1983 by Régie No. 1, then from November 28th, 1983 by Saatchi & Saatchi Publicité, as secretary of the financial department on permanent contract.
In 1989, Ms. X was promoted to the position of Legal officer, coefficient 400 of the Advertising Collective Agreement.
Ms. X was in charge of the legal monitoring of the company and its subsidiaries.
Lastly, after graduating in a private law degree, Ms. X was employed as a legal officer since 1st December 1990, the executive status, level 3.4 of the collective agreement for advertising.
Ms. X worked 32 years in the Publicis group, without interruption, except her three maternity leaves, in 1986, 1992 and 1995.
Ms. X subsequently suffered significant moral harassment (harcèlement moral) from her employer.
In addition, Re: Sources France did not respect of Mrs. X therapeutic part-time.
2) Judgment of July 27th 2018 of the Paris Labour Tribunal (Management section)
2.1) Null and void dismissal and its financial consequences
The Labour Tribunal (Conseil de prud’hommes) asserts that the administration of the evidence is the joint work of each of the parties, but that it is incumbent upon the employer to allege the precise facts on which it justifies its dismissal.
The letter of dismissal sets the limits of the dispute and that this letter states: "you had become accustomed to freeing yourself from the operating rules of the legal department, you made an offer of internship to a candidate by telephone, before you retract the same day. You have accepted an application without having consulted with your colleagues. You told your line manager that you had agreed with the other three officials and obtained their agreement, even though that was strictly false. You have persisted in your lie in writing to your manager and during the preliminary interview. It no longer allows us to trust you. "
The Labour Tribunal (Conseil de prud’hommes) notes that the exchange of e-mails between Mrs X and her colleagues concerning the recruitment of the two trainees (stagiaires) clearly demonstrates the validation of her colleagues concerning the choice of the two trainees.
The exchanges of mails of November 23th, 2015 between the employee and her supervisor are put to the debate, concerning the procedure followed by Mrs X for the recruitment of the two trainees.
It appears from the evidence before the Court that Ms. X strictly followed the recruitment procedure and that, therefore, such dismissal ground is unfounded as well as that of "characterised and reiterated Lie " and a "loss of incompatible with the pursuit of contractual relations ".
The Labour Tribunal (Conseil de prud’hommes) also points out that the employer does not provide any evidence to establish the materiality of the other misconduct mentioned in the letter of dismissal in very general terms "you had become accustomed to free yourself from the operating rules of the legal direction ".
Ms. H., General Secretary of Publicis group, dated February 8th, 2016, in which she stated: "It appears that you had little sense of teamwork and even tended to report very easily on your colleagues the tasks that were incumbent on you ".
The Labour Tribunal (Conseil de prud’hommes) notes that it is surprising, that an employee with 32 years of seniority who has never suffered the slightest criticism, is thus suddenly dismissed for allegedly failing to ask the opinion of her colleagues to hire a trainee (stagiaire).
It concludes that it is clear that the reason given, although fallacious, cannot explain the dismissal alone and that this incident was used as a pretext to dismiss the employee because of her weakened health.
Accordingly, the Labour Tribunal (Conseil de prud’hommes) considers Ms. X’s dismissal discriminatory, declares such dismissal null and void and condemn Re: Sources to pay Ms. X the sum of € 107,000 in damages for null and void dismissal.
2.2) Claim for damages for discriminatory treatment related to the state of health of the employee
It appears from the evidence in the debate that Ms. X's workstation was not laid out in accordance with the recommendations of the occupational physician, that the company did not react to the employee's various written alerts, knowingly keeping it in the workplace. A professional environment lived as hostile and humiliating.
Ms. X's colleagues testified that she was marginalized in a very demanding work environment and therefore stigmatized for employees whose state of health is weakened.
It was imposed on Ms. X to take her telework day on Tuesday, when it is the only day of the week when the entire legal team is gathered at the company's premises.
Are put in the debate the mail of Mrs. X to his hierarchy, deploring the imposed absence of Tuesday.
Is also put in the debate, the document "legal team" completed before the individual interview, in which Ms. X traces its professional difficulties since her return to illness in April 2013.
Ms. X's colleagues attest to the difficulties encountered in relation to a very excessive workload.
The Management, faced with a significant increase in activity within the legal department and part time of Ms. X, did not take the necessary measures to ensure the employees of this service acceptable working conditions.
Accordingly, the Labour Tribunal (Conseil de prud’hommes) condemns Re: Sources Company to pay Ms. X the sum of € 27,000 for damages for discriminatory treatment.
2.3) Claim for damages for breach of the obligation of security of result
Article L. 4121-1 of French Labour Code provides that: "The employer shall take the necessary measures to ensure the safety and protect the physical and mental health of workers".
The study of the documents sent by the company concerning her workload shows that Ms. X's position was not arranged according to the recommendations of the work doctor, on the basis of a study of her initial position, but based on the needs of the Legal Department faced with an increase in its activity, the employer arguing moreover that the other employees had a much higher workload.
The chart produced by the employer shows that the number of employees assigned to the employee was 212 before her sick leave and 578 when she returned to work on a full-time basis on April 16th, 2013 and reduced to 299 in the therapeutic half-time starting April 23th, 2013.
The fixed-term contracts granted to Mrs. M. and S, as well as to Mr. G., were first used to replace her during her absences, and that this is not a change in position.
The Labour Tribunal (Conseil de prud’hommes) notes that the employer does not show that the employees hired on fixed-term contracts or that the trainees present intervene on the agencies entrusted to Mrs. X to compensate for her part-time or to lighten her workload.
Lastly, the employer does not provide any evidence in favor of distributing Ms. X's workload among her colleagues, which may alleviate her workload.
The two weekly days of teleworking (télé travail) were only granted on June 26th, 2015, whereas the work doctor (medecin du travail) had advocated it as early as April 24th.
The Labour Tribunal (Conseil de prud’hommes) considers that the Re: Sources fails to prove the effectiveness of Ms. X's post adjustments, nor does it justify having reported to the work doctor about its difficulties in to proceed, nor to dispute its opinions.
It appears in view of the many emails sent to the debate that Ms. X has, during her work stoppages, continues to follow many files, to move for meetings and to produce analyses respecting deads lines.
Her supervisor is the author of some e-mails or is sometimes copied and could not therefore be unaware that the employee was working during her sick leave.
It is not disputed that Ms. X had to cut her vacation week by two days to attend a meeting at Leo Burnett.
The employer contravenes his obligation of security if he demands or tolerates that an employee works while he is on sick leave.
The certificates of Mrs P., who is also responsible for the legal profession and Mrs L., are admitted to the debate, attesting to Mrs X's involvement and her professional difficulties.
The employer does not justify answering Ms. X's four warnings (alertes) about the deterioration of her state of health in April and August 2013, March and June 2015.
The Labour Tribunal (Conseil de prud’hommes) says that this constitutes a new violation of its security obligation.
It appears on the final check (solde de tout compte) a remaining of 55 holiday paid (congés payés) not taken.
In conclusion, the Labour Tribunal (Conseil de prud’hommes) condemns Re:Sources to pay to Mrs X the sum of 27 000 € for damages for breach of the security obligation.
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
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