French Employment law - Moral harassment and non-payment of overtime = a manager obtains the judicial termination of his employment contract (CA Paris March 23rd, 2022, not final) Advertising agency
1) On moral harassment: the workload suffered by Mr. B in a context of international collaboration and sarcasm from his supervisor deteriorated his state of health
According to article L. 1152-1 of the Labor Code, no employee must suffer repeated acts of moral harassment which have as their object or effect a deterioration of their working conditions likely to infringe their rights and their dignity. , to alter his physical or mental health or to compromise his professional future.
Under Article L1154-1 of the same code, when a dispute arises relating to the application of Articles L. 1152-1 to L. 1152-3 and L. 1153-1 to L. 1153-4, the employee establishes facts that allow the existence of harassment to be presumed for the period prior to August 10, 2016 and presents elements of fact suggesting the existence of harassment for the subsequent period.
In view of these elements, it is incumbent on the defendant to prove that these actions do not constitute such harassment and that its decision is justified by objective elements unrelated to any harassment.
The judge forms his conviction after having ordered, if necessary, all the investigative measures that he considers useful.
Mr. B invokes:
- Excessive workload;
- Receiving e-mails from his superior early in the morning, late in the evening and during the night;
- The impact on the organization of work of his collaboration with teams located in the United States and India in different time zones;
- Uncertainty about the contours and scope of its own intervention following the abandonment of the SAP BI ALTAIR solution and the absence of a response in 2014 and 2015;
- Excessive pressure from his supervisor, Mr. F, from 2017;
- Mr. F's dubious and humiliating humor towards him;
- Mr. F's unjustified refusal to compensate for exceptional travel time;
- The sudden and unjustified refusal to accept a day of telework;
- Ignorance of Mr. B's warnings about his state of exhaustion;
- A sidelining by the capture of his collaborator without his being informed and the non-transmission of information and the fact of entrusting his missions to the team located in India;
- The implementation of an unjustified dismissal procedure.
Mr. B justifies having alerted his employer about his workload by email dated June 5, 2015, June 26, 2015, July 9, 2015, June 16, 2017, September 19, 2017 and October 3, 2017.
He establishes that he requested an interview with his superior on January 31, 2014 in order to confirm his position within RE:SOURCES FRANCE, his role in the choice, design and implementation of the new Altaïr reporting tool.
He demonstrates that he questioned his superior again about his role on April 10, 2014, May 16, 2014 and October 29, 2014.
Regarding the comments of his superior towards him, on January 10, 2017, Mr. B wrote to his immediate superior, Mr. F "I cannot accept the unjustified virulence of your comments, nor that you hold me responsible for 'possible delays related to my absence for leave, illness or any other legally recognized reason and vis-à-vis our Human Resources Department'.
On April 25, 2017, Mr. B not having replied to an email from Mr. F within five minutes of sending it, the latter approached Mr. B with a new email in these terms "you must be on a long technical break ” and while Mr. B answered “Hello” seven minutes later, Mr. F asked him “did you lose pounds? and Mr. B replied "I'm not sure I understood your sentence".
This inappropriate humor and these sarcasms were repeated on June 16, 2017: while Mr. B thanked his superior about the sending of two slides relating to certain works, in these terms "thank you superman", Mr. F replied “no problem” and accompanied his answer with a photographic print representing a traffic sign mentioning “too slow” or “too slow”.
Mr. B replied that he was on the verge of exhaustion, that he did not know if he would be present on Monday and that he was counting on his understanding to avoid this type of dubious and inappropriate humor in the context of the mass. work he had to deal with.
Mr. B also received regular emails from his supervisor during the night.
If he does not characterize the alleged refusal of a day of teleworking, he justifies on the other hand the refusal which was opposed to him to recover travel times during exceptional trips made on Saturday June 25, 2017.
Through several exchanges of emails addressed to his superior, in September and October 2017, he denounced being excluded from meetings relating to the architecture, design and delivery of the GDW project while another member of the architecture team which he had been entrusted with the coordination, was invited there.
He establishes that he was called to an interview prior to dismissal scheduled for October 31, 2017 and then postponed at his request to December 1, 2017 and that no follow-up was given to this procedure.
Taken as a whole, the facts thus established lead to the presumption of a situation of moral harassment.
The employer stresses that it has decided to carry out an internal investigation jointly with the CHSCT, which was entrusted to a member of the CHSCT and an employee of the human resources department.
Were heard, in addition to Mr. B, his superior, two employees of a hierarchical level equivalent to Mr. B also under the hierarchical authority of Mr. F, and a consultant.
If the employer points out that the employees heard answered in the negative to the question "do you think that there is moral harassment? “, it follows from the report that the existence of tensions and pressures has been noted.
The investigative delegation considered that Mr B had felt devalued, particularly when the management of the GDW project had not been entrusted to him.
The company argues that Mr. D, a consultant, was asked to relieve Mr. B of some of his tasks, which Mr. D attests to without however the extent and nature of this discharge being specified.
The employer also justifies having suspended the dismissal procedure because of the accusations of moral harassment made by Mr. B on that date, which it intended to investigate.
On the other hand, he does not explain Mr F's behavior towards Mr B, considering only that his humorous traits are an isolated fact or the impact on Mr B's health of his collaboration with employees located in the United States and India in different time zones creating a time lag in the action.
The workload suffered by Mr. B in a context of international collaboration and sarcasm from his supervisor deteriorated the state of health of Mr. B, who was placed on sick leave from October 6, 2017 until to his incapacity noted on May 31, 2018.
He thus suffered a situation of moral harassment.
The moral damage suffered in this respect will be repaired by the allocation of the sum of 5,000 euros in damages. The judgment will be set aside on this count.
2) On the breach of the safety obligation: the employer acted late and took no measures to prevent the recurrence of the facts from 2015 to 2017
According to Article L. 4121-1 of the Labor Code, the employer takes the necessary measures to ensure the safety and protect the physical and mental health of workers.
These measures include:
1° Actions to prevent occupational risks;
2° Information and training actions;
3° The establishment of an organization and appropriate resources;
The employer sees to the adaptation of these measures to take into account the change in circumstances and tend to the improvement of the existing situations.
Article L. 4121-2 of the same Code, in its wording applicable from August 10, 2016, provides that the employer implements the measures provided for in Article L. 4121-1 on the basis of the general principles of following prevention:
1° Avoid risks;
2° Assess the risks that cannot be avoided;
3° Combat risks at source; (…).
Numerous alerts were sent by Mr B to his employer or his superior:
- June 5, 2015, in the following terms: "Since 2014, I have been made available to the GDW project at 100% of my availability, which leads me to work on any ALTAIR subject in hidden time in addition my already excessive GDW load”;
- On June 26, 2015, in the following terms: "On the one hand I am not included in this strategic reflection, on the other hand, I am asked to invest myself at the end of the chain in tests linked to a UI that will probably be replaced in the short term. The subjects of ALTAIR ECC reporting (plan B and C), in principle under my responsibility, have been entrusted to people beyond my responsibility, knowing that, being made available to GSW at "100%", I have not materially no time to follow what is being done”;
- On July 9, 2015, in the following terms: "I confirm that I do not have the means necessary to accomplish my initial mission within the ALTAIR project";
- Following the interview of July 16, 2015: “you have nothing to offer me to improve my working conditions, give me more visibility on my future assignments”;
- June 16, 2017: “Too many e-mails, too many parallel tasks, too many complex and urgent subjects requiring coordination and meetings with the architectural and functional team”;
- On June 16, 2017, following mockery from his superior, he told him: "I'm on the verge of exhaustion, I don't know if I'll be able to come on Monday";
- On September 19, 2017, indicating that he would not be able to analyze all the documents requested and asked to review priorities and resources”;
- On October 3, 2017, recalling that he did not have the necessary resources with regard to the tasks that Mr. F had entrusted to him.
The employer only launched a joint investigation with the CHSCT in January 2018.
He thus acted belatedly and took no measures to prevent the repetition of the facts from 2015 to 2017.
The damage thus suffered by Mr. B, which is distinct from that caused by moral harassment, will be repaired by the allocation of the sum of 3,000 euros.
The judgment entered into will be reversed on this count.
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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