Friday, December 21, 2012

France - New Definitions and Increased Sanctions for Sexual and Moral Harassment

By Roselyn Sands and Corinne Bourdelot, Ernst & Young Societe d'Avocats, Paris

Even though the notion of harassment is a recent concept, it has now become a priority for the European Union and all European Member States to protect not only the physical safety of employees but also their psychological health at work, and thus fight against sexual and moral harassment.

According to the definition provided by the European Directive n°2000/78, harassment is an “undesirable behavior the aim or effect of which is to infringe someone’s dignity and to create an intimidating, hostile, degrading, humiliating or offensive environment.” All EU countries have transposed this Directive into their national laws and adopted rules against sexual harassment and moral harassment (“bullying”).

In France, sexual and moral harassment are both prohibited.

A specific offense regarding moral harassment was created in the Penal Code and the Labor Code in 2002. The definition is very broad and concerns any repeated behavior the aim or effect of which is to degrade someone’s working conditions entailing infringement of his/her rights and dignity, or disturbing his/her physical or mental health or damaging his/her career.
Concerning sexual harassment, both a civil and criminal offence in France, the French Penal Code has been recently amended (Act dated August 6, 2012) to include a new definition (the former definition being considered as unconstitutional as too vague). Sexual harassment now covers:
·         Repeated words or behavior with sexual connotations, that either:
o        degrade the victim's dignity because they are degrading / humiliating, or
o        create for the victim an intimidating, hostile or offensive environment;
·         Any serious form of pressure aiming to obtain an act of a sexual nature, for the harasser or a third party, is assimilated to sexual harassment. In this case, repetition is not required: even a single event may constitute a criminal offense.
Moreover, the criminal sanctions for sexual and moral harassment have been harmonized and increased: up to 2 years’ imprisonment for the harasser and/or 30,000 € fine. More severe sanctions and up to 3 years’ imprisonment and/or 45,000 € fine may be imposed in certain circumstances, e.g. abuse of position of authority or harassment against a very young person or a particularly vulnerable person.
Sexual and moral harassment are also civilly prohibited by the French Labor Code. On this basis, the victim may be entitled to civil damages, payable by the harasser AND the employer (be it an individual or a legal entity). Indeed, in France, the employer is bound by a strict obligation to protect the physical and moral health of its employees and may be held liable, even through no fault of its own, if an employee is subject to harassment.

In addition to the new rules provided by the Penal Code, the Labor Courts clearly tend to recognize more widely the liability of employers in cases of sexual or moral harassment, notably following several suicides in the workplace in major French companies like Renault or France Telecom.

For example, a recent case law has condemned an employer with a double sanction based on (i) moral harassment and (ii) failure to implement preventive measures (Cass. Soc., June 6, 2012, n°10-27694).

In this case, an employee, hired as security agent by the RATP (transportation company in the Paris area), was transferred to another position after the occupational doctor declared him unfit for work. He sued his employer on several claims, notably on the basis of discrimination and moral harassment.

The Court of Appeal, approved by the Supreme Court, decided that the employee could be entitled to damages both on the basis of the moral harassment itself (violation by the employer of its strict obligation of security) and on the basis of the failure of the employer to take measures to prevent the harassment, provided that the employee can prove that he suffered harm on both grounds.

Harassment may also be the origin of an occupational accident or disease (for example, if the harassment causes a nervous breakdown). In this case, the employee, who will be indemnified by the national insurance body, may claim additional compensation if he proves that the occupational accident results from the gross fault (“faute inexcusable”) of the employer. This will be the case if it is proved that the employer knew, or should have known, that the situation could become a danger for the employee’s health.

On this topic, a very recent decision of the French Supreme Court dated 8 November 2012 (n° 11-23855) decided that the employer had committed a gross fault towards an employee who had suffered a heart attack due to stress at work. The Court considered that the employee was subject to a very heavy workload in the years preceding his accident (70 hours of work per week) and that he was subject to pressures and to unreachable targets. In addition, the employer did not replace terminated employees, whose workload was borne by the victim. Therefore, the Court judged that the employer knew or should have known of the danger to the health of the employee and had not taken steps to protect him.

In this case, the French Supreme Court does not refer to moral harassment, but decides that methods of management causing excessive stress at work may constitute a violation of the employer’s obligations of security towards its employees. Here the Court opens an even wider area than the area of harassment...

This new legislative and judicial trend shows that the cases of harassment constitute a growing risk area for employers. It is becoming more and more important for all employers to adopt measures of prevention of harassment and protection of the health and safety of their employees.

Indeed, the new Act dated August 6, 2012 has implemented reinforced obligations regarding prevention of harassment (the legal texts prohibiting harassment must be included in the internal rules of the company and also posted in the work premises), but the employer is free to choose the measures it wishes to implement.

A well-advised employer should:

·         Assess and identify the risks of harassment in the workplace, by knowing the facts and situations that constitute harassment and being aware of the managers’ and employees’ behavior and language;
·         Improve and prevent harassment by bringing back values in companies (through a code of conduct for example), organizing training sessions for employees on the topic of harassment or proposing a “warning” system (through a hotline or mediators);
·         Monitor and manage harassment situations by closely investigating in case such a situation appears and taking steps where appropriate to sanction the harasser.
This process will constantly need to be reviewed, adapted to the specific situation of the company and improved, if necessary, to eliminate harassment in the workplace. Prevention measures are the only way for employers to avoid, or at least limit, liability in situations of harassment.