A warning for a slap : is it reasonable ?

Under French employment law, the definition of a disciplinary sanction is broad as it is defined by law as being “any measure, other than a verbal observation, taken by an employer in response to an act of an employee which the employer considers incorrect, whether or not such measure has an immediate effect upon the continued presence of the employee in the company, his/her duties, career or remuneration”.

In this framework, the disciplinary power of the employer is strictly regulated and French law requires in most cases that a procedure be complied with before disciplining an employee and provides that an employer cannot discipline an employee twice for the same fact. In addition, and most importantly, any disciplinary measure taken against an employee must be proportionate to the facts complained of. This means that, should the employee lodge a claim to challenge the sanction imposed upon him/her, the court can order that the sanction be cancelled (except if the sanction is a dismissal, in which case only unfair dismissal may be triggered) if it finds that the sanction was unjustified or disproportionate. The concerned employee may even be awarded damages if the judge considers that he/she has suffered a loss as a result of the unjustified disciplinary action.

In a recent case (Supreme Court ruling of 6^th April 2016), an employee recruited as a specialised educator in a re-education facility received a warning for having slapped a teenager who was a resident of the boarding school where she was performing her duties. Such misconduct was duly evidenced and the employee did not contest the facts reproached to her. However, the employee subsequently lodged a claim so as to have the sanction annulled by the employment judge.

The Court of Appeal found in favour of the employee and consequently cancelled the warning made against her on the ground that such sanction was not proportionate in light of the specific context. The employer appealed the decision and argued in particular that the warning was all the more justified in that the internal rules of the facility expressly provided that any violent behaviour against the young residents was strictly prohibited. Notwithstanding such arguments, the Supreme Court confirmed the decision of the appellate judges in light of the particular context, i.e. the alleged misconduct remained an isolated event (the employee had around 25 years of seniority) and occurred in the particular case of a conflict situation the handling of which was difficult (altercation between teenagers) and the employee was a well-balanced person whose professional qualities were unanimously appreciated. Therefore, the warning given by the employer was annulled and the Supreme Court even approved the decision of the Court of Appeal to sentence the employer to pay 100 Euros as damages for the moral harm suffered by the employee.

The decision of the Supreme Court is totally in line with the applicable legislation which gives the employment judges wide powers to assess whether or not a disciplinary sanction is proportionate to the facts. Such decision is also a reminder that the employment judges can also cancel even the lowest sanction, i.e. in this case a simple warning.