OD FLASH | Concealing a romantic relationship from her employer and dismissal for gross misconduct

Cass. soc., 29 mai 2024, n°22-16.218

In this decision, the Court of Cassation once again applies the principle that a reason based on an employee’s private life cannot justify a disciplinary dismissal, unless it constitutes a breach by the employee of an obligation arising from his employment contract (Cass. ass. plén., 22.12.2023, no. 21-11.330; Cass. soc., 6.3.2024, no. 22-11.016).

In this case, an employee held the position of site manager, held several delegations of authority in matters of health, safety and work organisation, and chaired the staff representative bodies (IRP).

The employee was dismissed for gross misconduct after his employer accused him of conflict of interest and disloyalty for having concealed for several years his romantic relationship with an employee who held trade union and staff representative mandates.

The employee challenged the validity of his dismissal. However, the lower courts rejected his claims.

The employee then appealed to the Court of Cassation, arguing that an employee’s silence on a matter that falls within the strict intimacy of his private life cannot constitute a breach of his contractual obligations, especially since it is for the employer to prove damage in order to sanction such a breach.

The Court of Cassation dismissed the appeal, holding that the Court of Appeal had correctly found: (i) that the employee held management positions and chaired the company’s IRP; (ii) that he had concealed from his employer for several years his relationship with an employee who held trade union and staff representative mandates; (iii) and that the two employees had discussed sensitive issues for the company, such as strikes and the occupation of one of the company’s premises, the implementation of a staff reduction project or the negotiation of redundancy plans.

In the light of the principle set out in the introduction, the Court concluded that this intimate relationship between the employee and his employer was related to his professional duties and was likely to affect the proper performance of those duties. Accordingly, by concealing this aspect of his private life, the employee had breached his duty of loyalty to his employer and this breach made it impossible for him to continue to work for the company, irrespective of whether or not any damage had been caused to the employer or the company.

Although the judges did not question or interfere in the intimate and private relationship between employees, they considered that the fact of having concealed it in such a context constituted misconduct.  This decision reminds both employees and employers that certain important principles, such as those relating to an employee’s private life, remain porous and cannot be used to justify every situation or behaviour within the company.