In France, employees alleging harassment enjoy legal protection against any retaliation by their employer. The employee cannot be made subject to sanctions as a consequence of such allegations, whether by outright dismissal or some lesser sanction. Obviously, there are some caveats around this, including the requirement that the employee have made such allegation of harassment in good faith. Bad faith is defined as the employee knowing that the facts alleged were false at the time he reported them, but not simply that the facts in question are ultimately not considered to constitute harassment.

The French Supreme Court recently had occasion to clarify the scope of such protection in a case decided on 28th September 2016. For the first time, the Court held that no prosecution for defamation could be brought against an employee who claimed to be the subject of harassment.

The facts were as follows:

An employee claimed she was suffering from harassment at work from her two hierarchical superiors. She decided to send a letter to the human resources department, with a copy to the Health and safety committee and the labor inspector, explaining her case.

The employer and her two hierarchical superiors in turn lodged a claim for defamation against the employee with the civil court.

Defamation is constituted by “any allegation or imputation of a fact that damages the honor or consideration of the person or body to which the fact is imputed”.

In order to refute a claim of defamation, the defendant must either demonstrate her good faith or show that the facts alleged are true, these being the only available defences to a defamation accusation. In the present case the employee was unable to produce such evidence and had therefore been ordered to pay 300 euros to each of her hierarchical superiors.

The case was appealed to the Supreme Court which held that an employee cannot be sued for defamation, noting in support of such ruling that the labor code expressly authorizes the employee to effect such denunciation.

Indeed, both the victim and the witness of moral harassment are protected against any retaliation measures, including dismissal and disciplinary measures based on such denunciations.

A defamation is deemed to be made with the intention to harm the other party. The evidence required to be produced by the defendant in the case of a claim for defamation would remove such protection as it would then be up to the employee to prove his/her good faith under very strict conditions whilst the employee can legitimately denounce facts which he/she genuinely believes (even if incorrectly) are facts characterizing harassment.

The solution adopted by the Supreme Court is intended to ensure the effectiveness of the protection of victims of harassment.

However, the employer can still defend its position in the event it can show that the employee was guilty of bad faith in alleging harassment. In such a case, the employer would be able to proceed with the dismissal of the employee and would be able to request a prosecution based on false accusation.




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