Harmful management practices can constitute moral harassment when they degrade an employee’s working conditions, even if the employee is not directly targeted. Employers must also act on credible warnings, even where the word “harassment” is not used.

In this decision, the HR Director warned the CEO about the General Manager’s management style. Her team reported a deteriorating workplace climate and toxic practices. The evidence also showed her growing distress, exclusion from certain recruitment decisions and the General Manager’s intrusive behaviour. She was later dismissed. 

The Court of Appeal accepted that the evidence pointed to harmful management practices affecting some HR staff. However, it found no presumption of moral harassment against the HR Director herself. It noted that she had been promoted, that there was no medical evidence of harm and that she had not described repeated acts of harassment directed at her. 

The French Supreme Court disagreed: harmful management practices directed at an employee’s team can also place that employee in a degraded working environment, even if the employee is not directly targeted.

The French Supreme Court held that harmful management practices can constitute moral harassment where they force an employee to work in an environment that may affect their rights, dignity or health. The employee does not have to show that each act was directed at them personally.

The decision also makes clear that employers must act on alerts about harmful management practices or a deteriorating workplace climate, even if the alert does not expressly refer to “moral harassment”.

In practice, employers should treat such alerts as potential health-and-safety issues. They should promptly assess the facts, protect the employees concerned, preserve evidence and, where appropriate, open an impartial investigation. The response should lead to clear action: support measures, management action, disciplinary action or organisational changes.

A refusal by the labor inspector to authorize the dismissal of a protected employee, because there is doubt about the alleged misconduct, does not by itself create a presumption of trade-union discrimination.

To understand the decision, two French-law rules should be kept in mind. 

• First, French law prohibits discrimination based on trade-union activity or representative duties. The employee must only present facts suggesting discrimination. The employer must then show that its decisions were based on objective factors unrelated to any discriminatory ground. 

• Second, employees who hold representative mandates benefit from a specific protective regime. Their dismissal requires prior authorisation from the labour authorities, which must verify that it is unrelated to their representative duties or union membership.

In this case, the employee held several representative mandates. On 7 June 2011, the labor inspector implicitly refused the employer’s first request for authorisation to dismiss him. On 26 January 2012, the Minister of Labour confirmed that refusal because there was doubt about the alleged misconduct. 

In 2017, after a collective redundancy process and approval of a social plan, the Minister of Labour authorised the dismissal on 29 September. The employee was dismissed by letter dated 9 October 2017. He had already brought a claim for compensation for trade-union discrimination on 11 August 2017. 

The question was whether the 2011 refusal, on its own, was enough to raise a presumption of trade-union discrimination and shift the burden of proof to the employer. 

The French Supreme Court answered no.

The prior-authorisation procedure is intended to ensure that a dismissal is unrelated to union membership or representative duties. However, a refusal of authorisation does not decide a later discrimination claim.

The mere fact that an employer sought authorisation to dismiss a protected employee, and that the request was refused because there was doubt about the alleged misconduct, is not enough to suggest trade-union discrimination. 

An administrative refusal does not automatically make an earlier dismissal process evidence of discrimination. Additional indicators are needed, such as suspicious timing, less favourable treatment than comparators, comments or instructions linked to the mandate, unexplained career stagnation, or repeated and insufficiently justified adverse measures.

The practical lesson for employers is twofold.

• A request for authorisation to dismiss a protected employee must be prepared carefully. The alleged facts must be well documented, the proposed sanction must be consistent, and the employer must show that the dismissal is unrelated to representative activity. 

• However, the failure of an earlier procedure because the evidence was insufficient or uncertain does not, by itself, shift the burden of proof in a later trade-union discrimination claim.