When it is argued before the court that a disciplinary sanction infringes upon an employee's right to freedom of expression, it is the judge's responsibility to balance this right with the employer's right to protect its interests. To this end, the judge must assess the necessity of the measure in light of the objective pursued, its appropriateness, and its proportionality to that objective.
To do so, the judge must consider the content of the offending remarks, the context in which they were made or written, their scope and impact within the company, as well as the negative consequences for the employer. Based on these various criteria, the judge must then determine whether the sanction imposed was necessary and proportionate to the objective pursued.
This is what the Court of Cassation affirmed in a judgment of September 9, 2026 (no. 25-12.320), published in the official bulletin.
The significance of this judgment lies less in a new protection of freedom of expression than in the clarification of the method that lower court judges must now follow.
III. Ruling.
The Court of Cassation dismissed the cross-appeals of the APF France Handicap association and Société Générale.
It held, citing Articles L5213-16, D5213-81, and L8241-2 of the French Labor Code, that disabled workers employed in a sheltered workshop can only be temporarily made available to another employer within the framework of a non-profit labor loan.
It upheld the decision of the Douai Court of Appeal, which had ruled that the agreements concluded between the association and Société Générale constituted an unlawful labor loan. However, the Court of Cassation partially overturned the judgment of the Douai Court of Appeal, on the grounds that the Court of Appeal had wrongly dismissed the employee's claims for compensation related to his unlawful dismissal.
With reference to Article 11 of the Declaration of the Rights of Man and of the Citizen of August 26, 1789, Article 10 of the European Convention on Human Rights, and Article L1121-1 of the French Labor Code, it reiterated that employees enjoy freedom of expression both within and outside the workplace.
The Court criticizes the Douai Court of Appeal for failing to sufficiently examine the context in which the emails in question were sent, their scope and impact within the company, and for not assessing whether the sanction imposed was necessary and proportionate to the objective pursued.
The case is referred back to the Amiens Court of Appeal.
IV. Analysis.
This judgment of September 9, 2026, is part of the recent evolution of the case law of the Social Chamber concerning the protection of employees' freedom of expression.
The Court of Cassation had already begun, in several judgments rendered in 2026, to strengthen the control exercised over infringements of this freedom.
It no longer limits itself to determining whether the employee's remarks are insulting, defamatory, or excessive: it requires the judge to balance the employee's freedom of expression with the legitimate interests of the employer.
The ruling of September 9, 2026 (no. 25-12.320) clarifies this new method of review, as the Court of Cassation requires judges to assess the necessity, appropriateness, and proportionality of the sanction in relation to the objective pursued.
To carry out this balancing act, judges must consider not only the content of the remarks, but also their context, scope, impact within the company, and any potential negative consequences for the employer.
This requirement is a continuation of the decisions rendered on January 14, 2026 (no. 23-17.946) and April 1, 2026 (no. 24-20.863), which had already established this new framework for analyzing employee freedom of expression.
Thus, the significance of this ruling lies less in providing new protection for freedom of expression than in clarifying the method that lower court judges must now follow. The sharp, ironic, or inappropriate nature of certain remarks is not, in itself, sufficient to constitute misconduct justifying dismissal.
The judge must determine whether the sanction was necessary and proportionate in light of all the circumstances.
This approach therefore leads to assessing the employee's remarks not in isolation, but in the context of the professional situation in which they were made.
To read the full article, click on the link below.
Sources :
Cass. Soc. 9 septembre 2026, n° 25-12.320
Licenciement en violation de la liberté d’expression du salarié : panorama 2026 de jurisprudences de la Cour de cassation.Licenciement en violation de la liberté d’expression du salarié : panorama 2026 de jurisprudences de la Cour de cassation. Par Frédéric Chhum, Avocat et Léa Fakhreddine, Etudiante.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
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