Inappropriate, rude and sexist comments made by Mr. Z towards Mrs. targeting remarks with a more sexual connotation in February 2019 “Was it hot this weekend? What's new on the sexual front? Nail polish I'm sure it's sexual. It's not okay, do you want a hug? Hi Miss G point are you wearing a thong today? ".
The testimony of another employee Ms. W who reports having witnessed inappropriate and sexual remarks from Mr. Z towards Ms. arms” or that in general he makes inappropriate remarks towards women using the women’s toilet without embarrassment or who asked him after a business meeting “if she had slept”.
Sexist or even sexual remarks corroborated by a certificate from an employee in dispute with the company constitute sexual and moral harassment.
The employee obtains 5,000 euros in damages for sexual and moral harassment, the cancellation of a warning and the judicial termination of her employment contract with all termination compensation for void dismissal (notice, compensation for void dismissal) .
This is what the Paris Court of Appeal (Pole 6 Chamber 11) ruled in a judgment of September 6, 2022.
The company appealed to the Court of Cassation.
In a judgment dated March 6, 2024 (no. 22-22.436), the Court of Cassation rejected the Company's appeal.
1) Facts and procedure.
Ms. Y was hired by SA Indep’AM, under an employment contract of indefinite duration from August 21, 2006 as a management assistant for a daily rate.
The contractual relations between the parties were subject to the national collective agreement for financial companies.
On May 31, 2013, Ms. Y benefited from parental leave until September 2, 2013, at the end of which she returned to her part-time work, i.e. 28 hours per week, until May 31, 2016.
On June 1, 2016, Ms. Y returned to full-time work, i.e. 35 hours per week, and from February 1, 2017, she increased to 39 hours per week as part of a weekly hours package.
On September 10, 2018, a warning was served on Ms. Y for contractual breach of her duty of loyalty and confidentiality towards her employer, which she will contest.
On October 5, 2018, Ms. Y first submitted a request to the Paris industrial tribunal for judicial termination of her employment contract.
Ms. Y was placed on sick leave from October 3 to December 16, 2018. On December 19, 2018, during her return visit, the occupational physician noted that the employee's state of health is not compatible with the resumption of her position then on January 2, 2019 her permanent incapacity for the position of executive assistant.
By letter dated January 8, 2019, Ms. Y was summoned to a preliminary interview scheduled for January 21, 2019 and dismissed for incapacity with the impossibility of reclassification by letter dated January 25, 2019.
On February 7, 2019, Ms. Y appealed to the Paris Industrial Tribunal to contest her dismissal for incapacity.
On the date of the termination, Ms. Y had 12 years and 2 months of seniority and the Indep’AM company usually employed more than ten employees.
The Paris industrial tribunal, by judgment of November 25, 2019, to which the
court refers for the presentation of the previous procedure and the initial claims of the parties, dismissed the employee of all of her requests.
The employee appealed.
2) Decision of Paris Cour of Appel of September 6th, 2022.
In its judgment of September 6, 2022, the Paris Court of Appeal (Pole 6 Chamber 11):
Confirms the referred judgment, in that it dismissed Ms. Y's claims regarding the illegality of her weekly hourly package agreement, reminders of overtime and compensation for hidden work. The cripple as to the surplus.
And ruling again on the infirm heads and adding:
cancels the warning issued to Ms. Y on September 10, 2018.
declares the termination of Mrs. Y's employment contract to the fault of the employer and says that this produces the effects of a void dismissal.
orders SA Indep’AM to pay Ms. Y the following sums:
- 5,000 euros compensation for moral and sexual harassment and sexist remarks.
- 1,353.43 euros as a reminder of additional hours plus the sum of 135.34 euros of related paid leave between October 5, 2015 and May 31, 2016.
- 10,249.98 euros as conventional notice compensation in addition to the sum of 1,024.99 of related paid leave.
- 1,391.32 euros as the balance of conventional severance pay.
- 25,000 euros as compensation for invalid dismissal.
- 2,000 euros by application of article 700 of the Code of Civil Procedure.
orders the reimbursement to Pôle Emploi by SA Indep’AM of compensation for
unemployment paid to Mrs Y within the limit of 6 months.
reminds that salary debts bear interest at the legal rate from the
receipt by the employer of his summons before the industrial tribunal while the compensation claims bear interest at the legal rate from the decision, fixing both the principle and the amount.
orders the delivery by SA Indep’AM to Mrs Y of a pay slip
summary of the salary sums allocated as well as a Pôle Emploi certificate and a corrected employment certificate in accordance with this judgment, within two months of its notification.
dismisses Ms Y of her remaining claims.
orders SA Indep’AM to pay the costs of the proceedings and the appeal.
3) Decision of the social chamber Cour de cassation of March 6th, 2024 (no. 22-22.436)
In a judgment dated March 6, 2024, the Court of Cassation has just rejected the company's appeal.
Source :
c. cass. 6 mars 2024 n° 22-22.436
https://www.dalloz.fr/documentation/Document?id=CASS_LIEUVIDE_2024-03-06_2222436#texte-integral
Propos sexistes et sexuels contre une salariée = harcèlement sexuel = licenciement nul.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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