OD FLASH | Recognition of sexist behavior as a real and serious reason for dismissal, based on the employer’s duty of security

Cass. soc., 12 juin 2024, n° 23-14.292

Article L.1142-2-1 of the Labour Code, codified in 2015, prohibits sexist behaviour. Defined as “any behaviour related to a person’s sex, the purpose or effect of which is to undermine his or her dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment”, this judgment of 12 June 2024 draws the consequences of such behaviour in the light of the employer’s obligation to ensure safety under Articles L.4121-1 and L.4121-2 of the same Code.

In this case, the Labour Division of the Court of Cassation is examining the question of whether sexist behaviour can constitute misconduct justifying dismissal on the basis of the employer’s safety obligation.

In this case, an employee was taken on as a senior technician on 21 September 1993. On 1 September 2016, the employee was given a precautionary notice of dismissal and summoned to a pre-dismissal interview to be held on 12 September 2016. On 11 October of the same year, the employee was notified by his employer of his dismissal for misconduct, on the grounds that he had allegedly made inappropriate comments of a sexual nature to several female colleagues. The employee had also allegedly made such comments in the past.

On 25 July 2018, the employee appealed to the Grenoble labour tribunal to contest his dismissal and, if appropriate, obtain compensation for dismissal without real and serious cause. On 15 February 2021, the Grenoble Labour Court dismissed all of the dismissed employee’s claims. The employee filed an appeal on 11 March 2021.

In a decision dated 2 February 2023, the Grenoble Court of Appeal overturned the decision of the labour court in its entirety, declared that the dismissal was without real or serious cause and ordered the employer to pay the employee compensation for dismissal without real or serious cause. The Court of Appeal overturned the decision, holding that although the employee’s sexist behaviour could be characterised as misconduct, the fact that the employer had not previously taken disciplinary action despite being aware of this behaviour meant that dismissal for misconduct was a “disproportionate” disciplinary measure.

Dissatisfied, the employer appealed to the French Supreme Court. The employer first pointed out that the employee had committed misconduct by making “repeated remarks of a sexual, sexist, insulting, humiliating and degrading nature”. The Court of Appeal found that the employee’s repeated behaviour was sexist. Accordingly, the employer complained that the Court of Appeal, in ordering it to pay various sums of damages to the dismissed employee, had violated the articles on the prevention of sexist behaviour and the employer’s duty of security in the Labour Code.

On the other hand, the employer argued that the employee’s behaviour, even though it did not result in an immediate sanction, still constituted misconduct that could be sanctioned by dismissal. It argued that the fact that it had only reprimanded the employee for his initial misconduct did not deprive it of its right, or even its obligation, to discipline him as part of its duty to ensure the safety of its employees.

The Labour Division of the Court of Cassation overturned the appeal decision on the grounds that the employer’s safety obligation requires the employer to take the necessary measures to “ensure the safety and protect the physical and mental health of workers”. Consequently, the employee’s repeated degrading comments about two colleagues constituted sexist behaviour. Irrespective of the employer’s previous attitude to these remarks, they constituted misconduct and therefore grounds for dismissal.  This ruling, the first under Article L.1142-2-1 of the French Labour Code, appears to be a step towards harmonising the treatment of disciplinary sanctions for sexual and gender-based harassment.