In a highly argued decision of April 5th, 2018 (pdf attached), the Rights Defender (Le Défenseur des droits) notes that Mrs. Y, legal officer (responsible juridique), was discriminated because of her state of health and that the company has breached of its obligation to protect the employee physical and mental health and consequently decides to present its observations before the Labour Tribunal (Conseil de prud’hommes).
Mrs. Y was hired by Saatchi and Saatchi in 1983; in 2010, her employment contract was transferred to Re: sources (Publicis group).
The collaboration went smoothly until 2013; Mrs. Y, first employed as a legal secretary, rose through the ranks to become a Legal Officer (Responsible juridique).
Nevertheless, in 2013, the employee's working conditions suddenly and abruptly deteriorated when she returned from a first sick leave of 3 months, necessitated by heavy cardiac surgery.
After a late rehearsal medical examination, the labour doctor issued a fitness with restrictions (aptitudes avec reserves); the weekly hours of work had to be reduced to 3 days a week, and Mrs. Y had to benefit from teleworking days.
The employee argued that the company never applied the recommendations of the labour doctor (médecin du travail) by refusing to adjust (aménager) the position of Mrs. Y and reduce its workload, and worse by entrusting it an excessive amount of work.
At the same time, Mrs. Y pleaded that she was suffering until her dismissal, the harassing behaviour, of her hierarchy, this manifested in particular by a side-lining and stigmatization of Mrs. Y within her team. For example, the person in charge of the service decided to organize the weekly team meeting, Mrs. Y's telework day.
Finally, Mrs Y was notified of her dismissal on December 18th 2015, Christmas week under a purely misleading pretext: having retracted a three-month internship (stage) offer from a candidate just after confirming her hiring.
Mrs. Y file a complaint before the Rights Defender (Défenseur des droits) in order to see recognized the discrimination of which she was suffering and file a complaint before the Conseil de prud’hommes to obtain damages for null and void dismissal (licenciement nul) because based on its state of health discrimination (discrimination liée à l’état de santé), as well as allowances for harassment and breach of the employer's safety obligation (obligation de sécurité résultat).
2) Decision of the Rights Defender n° 2018-104 of April 5, 2018: the employee suffered discriminatory harassment based on her state of health
According to its decision, the Defender of Rights states that: "The evidence gathered during the investigation makes it possible to consider that Mrs. Y did not benefit from the actual adjustments of her job, that she consequently suffers from discriminatory harassment (harcèlement discriminatoire) and that her dismissal for a clearly disproportionate reason for refusing an internship (stage) to a candidate, must be analysed in this context as a discriminatory eviction ".
Similarly, with regard to the discriminatory treatment suffered by Mrs. Y from her first hospitalization and the resulting obligation to adjust her workload, the Rights Defender notes that: "On the other hand , it appears that Re: sources did not react to the warnings that Mrs. Y issued on the deterioration of her state of health (état de santé) and finally, that Mrs. Y was marginalized in a stigmatizing work environment for employees whose state of health is weakened, in that it is perceived as a less professional investment. »(...)
The Rights Defender therefore notes that "Mrs. Y was subjected to discriminatory harassment because of her state of health, since the lack of development of her position created a professional environment that had the effect of to undermine her dignity and to create, to her detriment, an intimidating, hostile, degrading and humiliating environment ".
Finally, concerning Mrs. Y dismissal, the Rights Defender notes that "Also, since Re: sources does not present any objective element in support of such dismissal, and of which it has been demonstrated that it is a result of its marginalization provoked by the criticism of the medical alleviation of his workload (l'allégement médical de sa charge de travail), it appears as a pretext to evict him because of his weakened health and as a discriminatory dismissal. As such, it incurs nullity pursuant to Article L.1132-4 of the Labour Code. "
The Rights Defender, who is an amicus curiae, voluntarily intervened in the labour court (Conseil de prud’hommes) proceedings of the Legal Officer (Responsable juridique) to present its observations. (Pdf attached).
The case was pleaded before the Labour Court of Paris (Conseil de prud’hommes de Paris) – Section encadrement, on May 16th, 2018 and the deliberation set to July 27th, 2018.
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
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