OD FLASH | The employer’s security obligations and the prevention of sexual harassment may justify the impossibility of reinstating a protected employee.

Supreme Court, Social Chamber, January 8, 2025 – No. 23-12.574

The balance between the employer’s duty of security and the protection of certain employees, referred to as “protected” due to the mandate they hold, can lead to complex and costly decisions in the case of an error of judgment.

The ruling in question illustrates this delicate balance. In this case, an employee, appointed as a union representative, is placed on a precautionary suspension and called to a preliminary meeting for a potential dismissal following a report to management about inappropriate behavior with sexual connotations. As a “protected employee” due to his status as a union representative, the employer is required to obtain prior authorization from the administration before proceeding with the dismissal. However, the request for authorization is refused by the labor inspectorate.

The employer files a lawsuit in the administrative court, seeking the annulment of the decision to refuse the dismissal, a decision which is ultimately overturned by the administrative judge. In the meantime, the employee takes note of the termination of his employment contract, citing the failure to reinstate him in his position. The employee then files a claim with the labor court, seeking to have the termination of his contract treated as a dismissal null and void due to the violation of his protected status.

In considering the employee’s claim, both the labor court and the Court of Appeal of Paris recall that the employer is only exempt from its obligation to reinstate the employee if it proves that it was entirely and insurmountably impossible to find a position for the protected employee. The trial judges conclude that the testimonies of employees describing the problematic behavior of the employee (persistent behavior, unwanted physical contact such as kisses near the lips, caresses on the back, etc.) do not constitute a total and insurmountable impossibility of finding suitable work for the employee.

The trial judges therefore consider the failure to reinstate the employee as a violation of his protected status, ruling that the resignation should be treated as a dismissal null and void.

In its appeal, the employer argues based on its obligations concerning security and the prevention of sexual harassment: it asserts that it was impossible to reinstate the employee due to his actions and the risk that his reinstatement might pose to other employees, arguing that the lower courts should have taken this element into account during their review.

As expected, the Supreme Court overturns the ruling of the Court of Appeal of Paris. Citing the employer’s obligations to ensure security and prevent sexual harassment in the workplace, the Supreme Court reminds that the impossibility of reinstating the employee may arise from the risk that his reinstatement could pose to other employees. The Supreme Court further criticizes the Court of Appeal for failing to investigate whether these security and sexual harassment prevention obligations might, in this case, have made the employee’s reinstatement impossible.

It will therefore be for the referral Court of Appeal, exercising its discretionary power, to make the judgment between the employer’s obligations of security and harassment prevention, on one hand, and the protected employee’s right to reinstatement, on the other, following established case law where the employer’s security obligations can justify the impossibility of reinstating a protected employee who has been unjustly dismissed (French sup. court, December 1, 2021, n°. 19-25.715).