French Employment law - Partial and unfair internal investigation = breach of the security obligation (c. cass. 6 juill. 2022)
In a decision of July 6th, 2022 n ° 21-13631, the social chamber of the Court of Cassation recalls the conditions to be respected to carry out an internal investigation: impartiality, confidentiality and loyalty.
Failing to comply with these recommendations when carrying out an internal investigation, the employer is failing in its safety obligation.
1) Court of cassation response.
Having observed on the one hand that,
. following a meeting on September 30, 2013, at the end of which an employee who was part of the team headed by the employee had submitted a request for an interview with her superiors, the employer had entrusted an investigation to the direct superior of the employee with whom the disagreement was known and that the members of the management committee had been informed as of November 14, 2013 of the proposal made to the employee for a disciplinary transfer even before the initiation of the disciplinary procedure,
. and on the other hand retained the brutal questioning of an employee having a great seniority without the slightest antecedent as well as the consecutive deterioration of the state of health, both physical and moral, of the employee on sick leave from November 14 2013, then declared unfit for her position on July 31, 2014, the Court of Appeal was able to deduce that the hasty and humiliating questioning of the employee, without consideration or sufficient precautions, at least until the end of the disciplinary proceedings initiated, constituted a breach by the employer of the safety obligation.
The plea is therefore unfounded.
The Court of Cassation dismissed the appeals, both principal and incidental.
2) Analysis of the decision.
In a decision of February 9, 2012 No. 10-26123, the Court of Cassation had already decided this question.
She had claimed that
"the decision holds that the employer carried out an investigation without discretion, against and without allowing the respondent to have his witnesses heard, of little importance that before the national disciplinary council the employee was able to assert his rights, justifying thus without contradicting itself, the allocation of damages to the employee”.
The social chamber maintains a position identical to that of the recommendations of the French Anticorruption Agency (AFA) which invite the protagonists to be vigilant both in the choice of the actors of the investigation and in its progress.
Impartiality and loyalty are essential conditions for the proper conduct of an internal investigation.
In the decision of July 6, 2022, the Court of Cassation considers that the instruction entrusted to the direct hierarchical superior of the employee when there was a notorious disagreement between them, was conducted in a biased manner.
The Court of Cassation recalls that the disciplinary sanction envisaged must remain confidential until the closure of the internal investigation.
That by publicly disclosing the will to notify a disciplinary transfer with regard to the employee, the employer failed in its obligation of safety, leading to the deterioration of the physical and mental health of the latter until she is declared unfit for her position.
Article L4121-1 of the Labor Code requires the employer to take all necessary measures to ensure the safety and protect the physical and mental health of its employees.
In a decision of February 22, 2002 n°99-18389, the Court of Cassation recalls that the employer's obligation of safety is an obligation of result from which he cannot escape.
When an accident at work or an occupational disease is the result of the employer's negligence, his liability may be incurred for inexcusable fault when he was or should have been aware of the dangers to which the employee was exposed and did not taken the necessary measures to preserve it.
In its decision of July 6, 2022, the social chamber recalls the sine qua non conditions for conducting an internal investigation: impartiality, confidentiality and loyalty.
These are principles from which there can be no derogation, failing which the employer will be considered to have violated his safety obligation.
To read all the article please click on the link below
Harcèlement moral et enquête interne : l’enquête interne non portée à la connaissance du salarié dénoncé est loyale (Cass. soc. 17-03-2021 n° 18-25597) 
Salariés, cadres, cadres dirigeants - Harcèlement sexuel et agissements sexistes au travail : quelles préconisations de la Direction Générale du Travail ? https://www.juritravail.com/Actualite/salaries-cadres-cadres-dirigeants-harcelement-sexuel-et-agissements-sexistes-au-travail-quelles-preconisations-de-la-direction-generale-du-travail/Id/299844
Nouveaux métiers pour les avocats : l’avocat chargé d’une enquête interne https://blogavocat.fr/space/frederic.chhum/content/nouveaux-m%C3%A9tiers-pour-les-avocats-l%E2%80%99avocat-charg%C3%A9-d%E2%80%99une-enqu%C3%AAte-interne_
Propos connotation sexuelle + pressions sur une salariée pour tenter d’obtenir des faveurs sexuelles = Harcèlement sexuel https://www.chhum-avocats.fr/publications/propos-connotation-sexuelle-pressions-sur-une-salariee-pour-tenter-dobtenir-des-faveurs-sexuelles-harcelement-sexuel
Harcèlement moral : la prise d’acte de rupture d’une chargée de clientèle produit les effets d’un licenciement nul (CPH Paris Départage 14/01/2021) [https://www.legavox.fr/blog/frederic-chhum-avocats/harcelement-moral-prise-acte-rupture-30091.htm
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: : 45, Rue Saint Etienne 59000 Lille – Ligne directe +(33) 03.20.57.53.24