Even though 14% of couples are working (survey Ipsos 2018), it can be complicated to mix love and work.
In the United States, the rules of a company may prohibit employees from having a relationship with one of their colleagues, on pain of being dismissed.
Mr. Steve Easterbrook, CEO, was released in November 2019 by the Board of Directors of MC DONALDS. just like the CEO of Intel in 2018.
In France, relationships at work are (thankfully) not regulated.
Yet, love in the workplace can be synonymous with encroaching privacy on professional life.
In the same way, it happens that within the company the border between seduction and sexual harassment is quickly crossed.
Conflicts, tensions or disorganization of the company ... how to reconcile love and work?
If in principle employees are free to maintain romantic relationships, the proper functioning of the company should not be disturbed.
1) Principle: freedom at work (liberté au travail)
1.1) The employee's right to respect for its private life (vie privé)
Article 9 of the Civil Code states that "Everyone has the right to respect for his private life".
The employer aware of a relationship between two of his employees should not interfere in their privacy, even if this privacy takes place in the workplace.
Similarly, by virtue of a general principle of non-discrimination, the employer can not dismiss or penalize these employees.
In fact, according to Article L.1132-1 of the Labor Code, "no person may be excluded from a recruitment or appointment procedure or from access to an internship or a training period in a company, no employee may be sanctioned, dismissed or discriminated against, directly or indirectly (...) by reason of his or her sexual habits or orientation (...) or of his family status (...) ".
If the consideration of love feelings between colleagues is not explicitly mentioned, this article indirectly protects the sentimental life of the employee.
Thus, the employee who has a relationship with a colleague, or a supervisor can not be dismissed for this reason alone (Cass Soc 21 December 2006, n° 05-41140).
In this case, a cashier had been dismissed because of her relationship with a colleague.
The judges, claiming that this relationship had not created a disorder characterized in the company, consider that the dismissal is without cause real and serious.
1.2) The impossibility for the employer to prohibit upstream the romantic relationships between employees
Similarly, the employer can not prohibit upstream romantic relationships between employees.
On the one hand, it is impossible to stipulate in the contract of employment a clause that would prohibit such relations in the workplace; even by invoking possible future conflicts.
Such a clause constituting discrimination on family status prohibited by Article L.1132-1 of French Labor Code.
Thus, in a judgment dated February 7, 1968 (Cass Soc., n° 65-40622), the Court of Cassation considered that the clauses of celibacy, forbidding the marriage or the remarriage of the employees, infringed the freedom of the employee.
On the other hand, the internal rules of the company can not prevent spouses from being both employees within the company.
Indeed, the rules of procedure must not place excessive restrictions on people's rights.
According to Article L.1121-1 of French Labor Code "No one may bring to the rights of individuals and to individual and collective freedoms any restrictions that are not justified by the nature of the task to be performed and proportionate to the aim pursued".
Thus, the clause of the internal regulations stating that "spouses can not be employed simultaneously in the company" is not valid (Cass Soc 10 June 1982 n ° 80-40929 published in the bulletin).
2.1) Duty of neutrality of the employee
If it is incumbent on the employer to be indifferent to the employee's romantic relationships, the latter must respect the demarcation between private and professional life.
That is to say that employees cannot manifest their feelings in the workplace too explicitly.
Similarly, they are prohibited from abusing the professional means at their disposal for any purpose other than professional.
Promotions and benefits granted within the company must depend on professional skills, an employee cannot favor its spouse to the detriment of others. When the employer validates such a promotion, he must be able to show that the choices made are based on considerations that are unrelated to any discrimination (L.1134-1).
If drifts are detected in the workplace, the employer may, after having reframed the employee, send him a warning or any other proportionate and justified disciplinary sanction.
Lastly, the case law allows the validity of the non-disciplinary dismissal for facts, relating to the personal life of the employee, which has caused an objective disorder characterized in the company.
This disorder is assessed in terms of the employee's functions and the company's specific aims (Cass Soc, January 22, 1992 n° 90-42517).
In this case, a RENAULT employee had been fired for buying a Peugeot 405.
The Court of Cassation recalls the freedom of "goods and services" and considers that the dismissal is without cause because the employer did not show "any objective trouble to the company".
In addition, the Court of Cassation (Cass Soc 9 July 2002 n ° 00-45068) considers that "the violence of an employee towards his concubine, also employee of the company, which had given rise to his arrest, has caused a marked objective disturbance, even if it was a matter of personal life; the employer could fear new incidents and the reputation of the company and the image of the employees could be affected; that the dismissal was therefore admissible ".
Thus, the impact of the relationship on the operation of the company and the organization of work must be measured.
2.2) Prohibition of sexual harassment and sexist behavior
Although employees are free to have romantic relationships, these relationships must be made.
Indeed, the dividing line between seduction and harassment is fine.
Judges consider, for example, that attempting to obtain sexual favors from an employee by multiplying calls and gifts, by going to her home and intruding into her private life, in order to convince her and even to compel her to yield to her advances constitutes sexual harassment (Cass Soc 3 Mar. 2009, n° 07-44082).
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.
In the event of harassment, it is the employer's responsibility to take all necessary measures to protect employees (L. 4121-1 of the Labor Code).
See also our 3 articles:
. Sexual harassment and sexist behavior at work: what does the DGT recommend? https://www.village-justice.com/articles/harcelement-sexuel-agissement-sexistes-travail-que-preconise-dgt,31229.html
. Sexual harassment and sexist behavior at work: this changes with the laws of August 3 and September 5, 2018
https://www.village-justice.com/articles/harcelement-sexual-agencies-sex... law-future 29863.html # MSQpZhpXZVurKows.
. Harassment by pornographic SMS at work: the ambiguity of the subordinate disqualifies sexual harassment
Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris
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