OD FLASH | The obligation to carry out an investigation and the breach of the obligation to ensure safety

Cass. Soc., 12 juin 2024, n°23-13.975

Articles L. 4121-1 and L. 4121-2 of the Labour Code require employers to take the necessary measures to ensure the safety and protect the physical and mental health of workers. In this sense, the safety obligation is incumbent on the employer and requires him to take both preventive and remedial measures in response to situations brought to his attention that are likely to endanger the health or safety of employees. This obligation is reiterated in the case of moral harassment, where Article L. 1152-4 of the Labour Code states that the employer must take all necessary measures to prevent moral harassment.

In a judgment of 12 June 2024, the Labour Division of the French Supreme Court ruled on whether the absence of an internal investigation into alleged acts of psychological harassment constituted a breach of the employer’s duty of security.

In this case, an employee was hired as a human resources manager on 6 November 2008. She was absent from work from 18 November 2013 to 4 April 2014, before returning to work on a part-time therapeutic basis. On 18 October 2019, she was called in for a pre-employment interview and then dismissed for gross misconduct on 4 November 2019.

On 25 November 2019, the employee appealed to the Boulogne-Billancourt Labour Court, challenging her dismissal and seeking payment of her salary and damages, in particular on the grounds that the employer had breached its safety obligation. The Conseil de Prud’Hommes and then the Cour d’Appel dismissed the claim for damages on the grounds of unfair and unlawful performance of the employment contract and breach of the duty of care.

In a judgment handed down on 26 January 2023, the Versailles Court of Appeal ruled that in this case the employee could not be considered to have been subjected to psychological harassment, as the employer had responded to and dealt with the issues raised by the employee concerning her mental state by taking a position on the matter and clarifying her position within the company, while noting that the employee had been absent due to illness shortly after the warning had been issued. Accordingly, the judges found that the employer had not breached its safety obligation despite the lack of an internal investigation.

The employee appealed to the French Supreme Court, challenging in particular the dismissal of her claim for compensation for the employer’s breach of its safety obligation and arguing that the employer should have carried out an internal investigation in any event because of her warning.

The question before the Court of Cassation was therefore to what extent the absence of an internal investigation constituted a breach of the employer’s safety obligation.

The Social Division rejected the claim for compensation for the employer’s breach of its safety obligation on the grounds that the employer had taken sufficient measures to protect the employee’s health and safety, and concluded that it had not breached its safety obligation despite the absence of an internal investigation.

Although a first reading of the judgment might suggest a reversal, this is not the case. While the Court of Cassation had already ruled in 2011 that the conduct of an internal investigation enabled the employer to establish the facts and punish the perpetrator, to our knowledge it had never ruled that the mere absence of an investigation constituted a breach of the safety obligation.

On the contrary, the High Court confirms its case law by recalling that compliance with the safety obligation must be assessed globally and is a matter for the sovereign assessment of the trial judge. Consequently, the mere fact that the employer did not conduct an internal investigation following an employee’s report of harassment could not in itself constitute a breach of its safety obligation.