Moral harassment and employee’s absence

13 Jul 2018


Dorothée David

Vigilance in the event of “moral harassment” causing an employee’s absence 

The Court of Appeal recently had to assess the validity of a dismissal due to the unjustified absence of an employee, the cause of whose absenteeism involved instances of “moral harassment”. In this case, an employee with more than 13 years’ service had been absent for medical reasons for 7 months. In two statements by the CNS (National health Fund), then three statements issued by examining doctors within the context of re-examinations organised by the employer, the employee was declared capable of working. However, the employee did not go to work after the last medical re-examination of 16 July 2015. 

Considering that the statements on fitness to work issued by the CNS and the examining doctors overturned the simple presumption of illness associated with the employee’s medical certificates, and made protection against dismissal ineffective, the employer informed her of her dismissal with immediate effect on 31 July 2015, for unjustified absence since 17 July 2015. 

Feeling that her absence was justified, the employee launched a legal challenge against her dismissal, specifically pointing out:

  • the decision of the “Conseil arbitral de la Sécurité Sociale” issued following the appeal against the CNS’s statements on fitness to work, released 9 months after the dismissal, and finally recognising her inability to work from 16 June to 5 August 2015;
  • instances of “moral harassment” she suffered at work, of which, according to her, the employer was aware.

The Court began by recalling that the employer did not have to invite the employee to start work again after the last medical re-examination, as the decisions by the examining doctors deciding on an immediate return to work were “clear and precise”. 

Then, although the Court felt that the employer’s approach in this case was legitimate, it nevertheless decided that dismissal with immediate effect was unfair given the cause of the absence in question. 

The Court in fact ruled: “While this approach by the employer is legitimate when the character “unjustified” of the absence is established as the main obligation of the employee is to go to the workplace to work, this is different if the unjustified nature of the absence is yet to be established, as the employee claims that the cause of her absenteeism lies in the moral harassment that she suffered in her workplace”. 

The burden of proof of moral harassment lies with the employee, and according to the Court, this proof came in particular from the medical statements by her psychiatrist and the three medical statements by the examining doctors brought to the employer’s knowledge. 

The Court therefore sanctioned the employer on the basis of article 1134 paragraph 3 of the Civil Code, and article L. 245-4 (1) of the Labour Code (provisions on sexual harassment) for having dismissed the employee without notice following the last statements on fitness to work issued by the examining doctor, as the latter had indeed highlighted “the employer-employee relationship problems” and indicated that a “different solution should be found”. 

To this end, the Court specified that the principle of executing the employment contract in good faith implies that the employer should not do nothing when it is informed, not only of acts of “harassment”, but also of a “conflict”, and that its obligations as an employer do not restrict themselves to the assumption of “proven” moral harassment:

When informed of instances of harassment or a conflict between employees, the employer should take preventive measures prior to conflictual behaviour and play a proactive role by managing conflictual attitudes or actions. 

The employer’s obligations include, among others, the obligation to listen to the alleged victim and carry out an internal investigation”.  

In the end, the Court concluded by finding that the decision of the “Conseil Arbitral” ultimately recognising the employee’s inability to work consolidated its conviction that the employee had indeed suffered “psychological violence in her workplace” at the root of her absenteeism. 

In conclusion: 

This judgment obliges the employer not to turn a blind eye when informed of moral harassment issues or a conflict between employees. The employer must remain vigilant about this: the information about harassment may be indirect and come to it via a channel other than the employee him/herself. 

The end result of this ruling is that the employer should have managed the problematic situation internally, and not dismissed the employee directly with immediate effect

Court of Appeal, decree of 19 April 2018, role no. 44623