OD FLASH | A lawyer’s letter refusing the proposed contractual termination does not fall within the scope of the employee’s freedom of expression.

Court of Cassation, Social Chamber, 10 September 2025 – No. 24-12.595

As a citizen, an employee enjoys freedom of expression, recognised as a fundamental freedom, which can be exercised both within and outside the company. However, this freedom is not absolute: it is limited by abuse, characterised by insulting, defamatory or excessive remarks, denigration or unfounded accusations. Thus, dismissal based on an employee’s expression, without this constituting abuse, is liable to be declared null and void.

In the present case, a development director was offered a contractual termination during a meeting with her employer on 17 April. On 23 April, she rejected this offer in a letter sent by her lawyer. A few weeks later, on 13 May, she was dismissed for professional inadequacy. The employee challenged her dismissal before the labour court, claiming that it violated her freedom of expression.

On appeal, the judges upheld her argument, ruling that the dismissal was invalid on the grounds that the evidence provided by the employee and its chronology suggested that the dismissal had been pronounced because of the letter of refusal, and therefore in violation of her freedom of expression.

The Paris Court of Appeal ruled in favour of the employee and held that it was up to the employer to establish that its decision was justified by factors unrelated to any desire to punish the employee’s freedom of expression, even through her legal counsel.

The company then appealed to the Court of Cassation, arguing that the comments in question had been made by the lawyer and not by the employee herself, so that the dismissal could not be declared null and void on the grounds of an infringement of her freedom of expression.

The Social Chamber of the Court of Cassation overturned the Court of Appeal’s ruling and upheld the employer’s argument. Pursuant to Article 1121-1 of the Labour Code, it considered that:

• The dismissal letter was based on professional inadequacy and did not contain any grievance arising from the employee’s exercise of her freedom of expression;
• A lawyer’s letter refusing a mutual termination agreement does not constitute the employee’s own exercise of freedom of expression, whether within or outside the company.

On a second ground, the High Court again overturned the analysis of the Paris Court of Appeal under Article L1231-1 of the Civil Code, dismissing the vexatious nature of the dismissal invoked by the employee. 

It then reiterated the principle that an employee whose dismissal is without real and serious cause cannot claim damages separate from the compensation for dismissal without real and serious cause except “in the event of misconduct on the part of the employer in the circumstances of the termination“. However, in the case in question, the employee did not demonstrate such conduct, so that no separate damage could be awarded.