In three decisions dated 14 January 2026, the Social Chamber of the French Supreme Court defined the approach to be adopted when a disciplinary sanction interferes with an employee’s freedom of expression. 

It should be noted that freedom of expression is a fundamental freedom guaranteed at constitutional level under French law (Article 11 of the Declaration of the Rights of Man and of the Citizen), as well as by the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 10). 

The French Labour Code also protects individual freedoms, providing that “no one may place restrictions on individual or collective rights and freedoms that are not justified by the nature of the task to be performed or proportionate to the aim pursued” (Article L. 1121-1). 

Employees therefore enjoy freedom of expression in the workplace, and any restriction imposed by the employer must be justified and proportionate to the aim pursued. 

Until now, in matters relating to freedom of expression, the lawfulness of a disciplinary sanction or dismissal was assessed based on the existence of an abuse, characterised in particular by insulting, defamatory or excessive remarks. 

In its decisions of 14 January 2026 (nos. 23-19.947, 24-13.778 and 24-19.583), the Supreme Court has clarified the methodology to be applied with a proportionality review, inspired by the case law of the European Court of Human Rights.

According to the Supreme Court, where it is argued that a sanction infringes an employee’s exercise of the right to freedom of expression, the trial judge must perform a balancing test between the employee’s right to freedom of expression and the employer’s right to protect their legitimate interests.

The judge must therefore assess the necessity of the measure in light of the aim pursued, as well as its suitability and whether it is proportionate to that aim.

In practice, this assessment requires an examination of:

• the content of the disputed remarks (i.e. their substance and whether they are excessive);
• the context in which they were spoken or written (in particular whether the situation was exceptional and the circumstances surrounding the remarks);
• their scope and impact within the company, as well as the negative consequences for the employer (harm to its image, economic interests, or the proper functioning of the business, etc.). 

On the basis of these criteria, the judge will, in the event of litigation, have to determine whether the sanction was necessary, appropriate and proportionate to the objective pursued. 

This highly fact-specific analytical framework reinforces the requirement to provide detailed reasons for disciplinary sanctions based on, or linked to, statements made by an employee.

It calls on employers to exercise particular caution in handling such situations, all the more so since the potential sanction is the nullity of the dismissal on the grounds of an infringement of a fundamental freedom.

A new mandatory negotiation on employment, work and the improvement of working conditions for “experienced employees in view of their age” has been introduced by Law no. 2025-989 of 24 October 2025, known as the “Seniors Law”.

It is additional to the existing mandatory periodic negotiations.

A Decree of 26 December 2025 (no. 2025-1348) and the 2026 Social Security Financing Act (Law no. 2025-1403 of 30 December 2025) have provided certain clarifications.

By way of reminder, this new mandatory negotiation topic applies to companies and corporate groups with at least 300 employees. 

The law does not set any age threshold for identifying “experienced employees in view of their age”. This assessment is left to the social partners, who must define this notion during the negotiation, in light of the specific characteristics of the company. 

A procedural agreement (“accord de méthode”) may set a different negotiation frequency, up to a maximum of once every four years. In the absence of such an agreement, this negotiation must take place every three years. 

It must then be preceded by a prior diagnosis of the situation of experienced employees. 

This diagnosis must cover in particular:

• the recruitment of these employees;
• their retention in employment;
• the organisation of end‑of‑career arrangements, in particular arrangements to support phased retirement or part‑time work;
• the transmission of their knowledge and skills, in particular mentoring, tutoring and skills‑based sponsorship schemes. 

These correspond to the mandatory negotiation topics (in the absence of an agreement adjusting the scope of the topics to be covered).

The diagnosis must also be based “in particular” on indicators drawn from:

• the Economic, Social and Environmental Database (“BDESE”);
• the single occupational risk assessment document (“DUERP”). 

These elements do not constitute an exhaustive list, and other relevant data may also be used.

The diagnosis may also refer to the optional negotiation topics, which include:

• the development of skills and access to training;
• the effects of technological and environmental changes on jobs;
• staff management methods;
• arrangements for listening to, supporting and supervising these employees;
• occupational health and the prevention of occupational risks;
• work organisation and working conditions.

A sanction mechanism is provided for, in the form of a financial penalty (“malus”) applied to the employer’s old‑age and survivors’ insurance contribution rates:

• in the absence of negotiations on the employment, work and improvement of working conditions of experienced employees;
• or, failing an agreement, in the absence of an annual action plan aimed at promoting the employment of experienced employees.

The rate of this penalty and the practical details of its implementation will be set by decree, taking into account the efforts made within the company to promote the employment of senior employees and the reasons for any failure to comply.