OD FLASH | The employer’s discovery of new wrongful acts allows the employer to rely on these facts, including those that have already been sanctioned, to characterize a gross misconduct.

Supreme Court, Social Chamber, February 5, 2025 – No. 22-15.172

In this case, a female employee was dismissed for gross misconduct by letter dated September 26, 2018. The difficulty lies in the chronology of the case, as follows:

• On August 17, 2018, the management received an email from an employee, alerting them to continuous and disparaging criticisms from another specifically named employee, as well as surveillance by video by this same employee.
• On August 29, 2018, the company sent the employee targeted by these accusations a meeting report outlining the alleged facts.
• Between September 8 and 11, 2018, the company gathered testimonies from employees and former employees confirming the facts and revealing some new details.
• On September 26, 2018, the employee was dismissed for gross misconduct, with the dismissal letter explicitly referring to the August 29, 2018, letter.

The dismissed employee filed a claim before labor court to challenge the dismissal. An appeal was then filed, arguing that the dismissal was not for a real and serious grounds, particularly on the grounds that the August 29 letter should be considered a disciplinary warning, meaning the employer had exhausted their disciplinary powers. The employer then appealed to the Supreme Court.

The employer criticized the Colmar Court of Appeal for ruling that the dismissal was without real and serious grounds, and for condemning the employer to pay various sums to the employee, arguing that:

• The employer may consider all the wrongful acts committed by the employee, the exact nature, scope, and seriousness of which could only be known after an internal investigation, in order to justify a dismissal for gross misconduct.
• The continuation of wrongful conduct by an employee allows the employer to rely on similar facts, including those already sanctioned, to characterize a gross misconduct.

The Supreme Court, referencing Article L.1331-1 of the French Labor Code, reminded that although the same wrongful act cannot lead to double sanction, the continuation of wrongful behavior by an employee allows the employer to rely on these acts, including those already sanctioned, to establish a gross misconduct.

It applied this principle to situations where the employer discovers wrongful acts after the initial sanction, regardless of the exact dates of the acts. In this case, despite the initial report made on August 17, 2018, it was only after the internal investigation that the company became aware of the severity of the employee’s actions, thanks to testimony collected between September 8 and 11, 2018.

This ruling is of interest for several reasons:

• It reiterates a well-known principle: “The continuation of wrongful behavior by an employee allows the employer to rely on similar acts, including those already sanctioned, to characterize a gross misconduct” (Supreme Court, September 30, 2004, No. 02-44.030).
• It applies this principle to the post-sanction revelation (via an internal investigation) of the extent of the misconduct through new facts, thus confirming its previous case law (Supreme Court, April 16, 2015, No. 13-27.271).
• It implicitly confirms the nature of a sanction in a meeting report sent to the employee during the investigation, where the employee’s actions are described as “intolerable“, and the employer requests the employee to improve their behavior.

This decision serves as a reminder to employers to be extremely careful when drafting letters/emails to employees that address their behavior, as such communications can easily be considered as warnings, thus potentially exhausting the employer’s disciplinary powers.

In the present case, if the testimonies gathered during the internal investigation had not revealed new aggravating facts, the decision of the Supreme Court would likely have been different.