In a judgment of April 19, 2023, the Court of Cassation abandoned its previous case law according to which the protection against dismissal enjoyed by the employee who denounces acts of moral harassment only comes into play if he qualifies them as such.

Court of Cassation, Social Chamber, April 19, 2023, n°21-21.053.

1. Protection against dismissal for the benefit of the employee who has denounced acts of moral harassment.

The employee who denounces acts of moral harassment benefits from protection against dismissal.

Indeed, according to constant case law based on articles L1152-1 and L1152-3 of the Labor Code:

“an employee who reports acts of moral harassment cannot be dismissed for this reason, except in bad faith, which cannot result from the sole circumstance that the facts denounced have not been established” [1].

Any dismissal of an employee linked to the denunciation of acts of moral harassment is therefore null and void.

This protection is only excluded in the event of bad faith, which cannot be deduced from the sole circumstance that the facts complained of have not been established [2].

Only knowledge of the false nature of the facts denounced makes it possible to characterize the bad faith of the employee and thus to exclude protection against dismissal.

The nullity of the dismissal pronounced in violation of this protection offers the employee an option:

• Either he requests his reinstatement within the company and the payment of the wages he should have received between the date of his dismissal and that of his effective reinstatement;

• Either he does not ask for his reinstatement and he is then entitled not only to the payment of his termination indemnities (compensatory indemnity for notice, severance indemnity) but also of an indemnity repairing all the damage resulting from the illicit nature of his dismissal (the amount of which is left to the discretion of the judges on the basis of the elements justifying this prejudice).

To read the full brief, click on the link below

https://www.village-justice.com/articles/harcelement-moral-licenciement-salarie-qui-denonce-une-situation-harcelement,45975.html?utm_source=dlvr.it&utm_medium=twitter&utm_campaign=RSS

Marilou OLLIVIER

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