France forces employers to investigate allegations of harassment even without evidence | Ogletree, Deakins, Nash, Smoak and Stewart, PC

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French employers are now required to investigate any allegation of harassment, even if the employee produces no evidence. This is the position of the French Court of Cassation as of November 27, 2019, case

Factual background

An employee, on sick leave, wrote to her employer on October 14, 2011, stating that her health problems were work-related. On December 12, 2011, she wrote a second time to complain about acts of moral harassment committed by her supervisor. However, the employee was dismissed for professional incompetence on January 31, 2012.

Believing that her dismissal was the result of her harassment complaints and therefore null and void, the employee brought an action before the French labor court. She requested recognition of the nullity of her dismissal and the award of damages on account of (i) the damage suffered as a result of moral harassment and (ii) non-compliance with the obligation to prevent acts of harassment. .

The court’s decision

The French labor court noted that the employee had not established facts allowing the presumption of moral harassment and therefore rejected her allegations of harassment. The judges also ruled that in the absence of allegations of bullying, the employer could not be blamed for not having conducted an investigation.

The French Supreme Court overturned this ruling, declaring that the obligation to prevent occupational hazards, such as harassment, and the prohibition of acts of harassment are two separate obligations.

The employer has a duty of safety, which obliges him to take the necessary measures upstream to avoid, as in this case, harassment. In the event of harassment, it is the employer’s responsibility to stop it without delay.

Key points to remember

Therefore, employers should note that in the event of a harassment complaint by an employee reporting acts of harassment, employers should initiate an investigation immediately, even if the complaint may be considered unfounded. This investigation allows employers to document the employer’s reaction, verify allegations and justify any decision to take action.

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