In a judgment of January 18th, 2023 (n°21-10.233), the social chamber of the Court of Cassation ruled that the industrial tribunal judge could retain the qualification of moral harassment (harcèlement moral), even though this qualification was rejected by a court criminal.
Analysis.
Thus, the Court of Cassation bases itself on the difference in the conditions necessary to retain the qualification of moral harassment before the criminal judge and before the industrial tribunal judge.
As a reminder, article 222-33-2 of the Penal Code provides that: "The act of harassing another person by repeated remarks or behavior having as its object or effect a deterioration in working conditions likely to infringe their rights and his dignity, to alter his physical or mental health or to compromise his professional future, is punished by two years' imprisonment and a fine of 30,000 euros.
Article L1152-1 of the Labor Code provides that: "No employee must be subjected to repeated acts of moral harassment which have as their object or effect a deterioration in their working conditions likely to infringe their rights and to his dignity, to alter his physical or mental health or to compromise his professional future".
However, in criminal law, the qualification of harassment requires an intentional element. On the contrary, the Court of Cassation explains that such an intentional element is not required in labor law.
Consequently, the conditions not being the same, the decision of the criminal judge cannot bind the labor court judge, who can then retain or not the qualification of moral harassment independent of what the criminal judge judged.
Thus, the industrial tribunal may retain acts of moral harassment characterized by inappropriate management methods on the part of the employer.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Mathilde Fruton Létard, élève avocate EFB Paris
CHHUM AVOCATS (Paris, Nantes, Lille)
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