In a significant change of direction, the French Supreme Court
has held that an employer will not be liable for workplace
harassment where it puts in place specific measures prior to and
after the harassment taking place. This is a significant change
from the previous harassment Court decisions, which were highly
criticised by employers and held that health and safety were
sacrosanct, so an employer would automatically be liable for any
harassment at work committed against an employee.
Workplace harassment - high risks for employers
Harassment arises when an employee is subjected at work to
repeated actions, whether from a member of staff or agents, which
purpose or effect cause detriment on the employee's rights and
dignity, his/her physical and mental health and his/her
professional future. Traditionally, if such a situation arises, an
employer, even if not directly involved in the harassment, faces
two main risks for failing to provide a safe working environment:
on rare occasion, a criminal liability (up to 3 years of
imprisonment and 45,000 €) and more frequently civil sanctions
- employers will be liable to fully compensate the losses incurred
by the employee (damages, loss of earnings, injury to feelings) and
reimburse any allowance received from the French State. Note that
such liability applies for both moral harassment
("bullying") and sexual harassment, and that any
termination measure would be null and void.
The new approach - Air France
The trend to a more employer-friendly approach stems from last
year's decision of the French Supreme Court of 25 November
2015. The case concerned an airline pilot who alleged that his
employer, Air France, was liable for mental health issues occurring
several years after the events of 11 September 2001. The Supreme
Court rejected his claim on the basis that Air France had taken
adequate steps to safeguard employees' mental and physical
health. The Court was swayed by the fact that Air France had
provided continuing medical and psychological support to its staff
over this period.
Clarity for employers
It was unclear whether the Air France decision would be applied
to cases of harassment at work, where the French Courts have
traditionally applied a principle of strict liability. The Supreme
Court has now resolved this question in a decision of 1 June 2016.
It held that an employer would not be liable where it has taken
specific steps to prevent the harassment taking place and stop it
from occurring again.
Harassment - the employer's defence
To avoid liability for harassment at work, the Supreme Court has
confirmed that employers must:
1. Before an act of harassment, take the preventive
measures set out in the French Labour Code (articles L 4121-1 et L
4121-2). This means training employees to recognise and tackle
harassment, putting steps in place for employees to raise
harassment and get help; and
2. After the harassment takes place and as soon as they
become aware of it, whether formally or informally, take immediate
steps to prevent a recurrence. Although the decision does not
provide any examples, steps could include carrying out an
investigation without delay, removing the employee from contact
with the alleged harasser and providing medical and psychological
Two-pronged approach for employers
It is now clear that it is not enough to refer the employee to a
handbook or internal regulations. Instead, employers need a
Firstly, employers need to actively roll out
anti-harassment training for employees as part of their health and
safety programme. This would include awareness training, written
guidelines, information notices posted in the workplace, appointing
anti-bullying champions in the workplace, and regular updates for
new hires and existing staff.
Secondly, employers should put in place anti-harassment
policies that build in a reporting mechanism and enable immediate
intervention. The goal is to capture harassment complaints when
they are first raised, and to escalate them to the appropriate
functions so that action can be taken to stem the harassment. The
decision of 1 June 2016 makes it clear that employers need to be
more proactive, working if necessary with the employee
representatives, such as involving the Health and Safety Committee
and the Works Council where such representation exists.
Employers who do not take both of these steps will be at risk,
and the consequences can be costly.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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