Publié le 08/07/2025

French labour law - Internal Investigation and Dismissal Following Moral or Sexual Harassment: Assessment of its Probative Value by the Judge (Cass. Soc., June 18th, 2025, 23-19.022)

Article juridique - Droit du travail

This is what the Court of Cassation affirmed in a decision dated June 18th, 2025 (23-19.022), published in the Bulletin.

In the event of the dismissal of an employee due to the commission of acts of sexual or moral harassment, or sexist or sexually charged behavior, it is up to the trial judges to assess the probative value of an internal investigation produced by the employer, in light, where applicable, of other evidence produced by the parties.

1) Motivations.

In the event of the dismissal of an employee due to the commission of acts of sexual or moral harassment or sexist or sexually oriented conduct, it is up to the trial judges to assess the probative value of an internal investigation produced by the employer, in light, where applicable, of other evidence produced by the parties.

The Paris Court of Appeal, in a sovereign assessment of the value and scope of the evidence produced by the parties, in particular the report of the internal investigation jointly used by the employer and the Health, Safety and Working Conditions Committee (CHSCT), first noted that the events of January 5, 2018, reported by Ms. [D] in her interview report, were described in a fairly similar manner in Mr. [M]'s interview report, but that Ms. [D]'s interview report was partially truncated regarding the other events she described, without establishing that she had personally witnessed them. It then noted, on the one hand, that the facts reported by Ms [F] were not confirmed by any person who had witnessed them and that the report of the interview with Mr [G], heard by the commission of inquiry, had not been produced, even though in 2017 he had received confidences from Ms [F] concerning two of the four incidents of which she said she had been the victim at the hands of the employee and, on the other hand, that the facts described by Ms [L] were not confirmed by any other person even though employees had witnessed them according to the person concerned.

It also noted that no other person indicated having personally witnessed the remarks made by the employee concerning his wife as recounted by Mr [H] and it did not appear that he had personally witnessed the other facts mentioned by him, apart from the fact that the passages in his interview report relating to them had been truncated, the names of the people cited being redacted, without these facts being corroborated by other elements. It finally noted that the entire investigation was not submitted to the proceedings since only five reports of the fourteen interviews conducted were produced, that although the company claimed that this lack of communication resulted from the employees' desire to remain anonymous and not to produce their testimony, it did not explain why it could not have anonymized these elements, and held, carrying out the allegedly omitted research, that since the company did not justify the alleged reason for this, it could not be excluded that these reports were absent from the documents produced by the company because of their favorable nature to the employee or because they specifically refuted all or part of the facts attributed to the latter, the conclusions of the investigation not being able to compensate for this lack of production, all the more so in view of the conditions of the investigation criticized in a similar manner by two witnesses.

In light of these findings, which show that it assessed the probative value of the internal investigation report in light of the other evidence produced by both parties, the Court of Appeal held that the grievances raised by the employer in support of the dismissal were not established by sufficiently convincing evidence and that the doubt should therefore benefit the interested party.

2) Analysis.

The appeal by Publicis was dismissed by the Court of Cassation.

The Court of Cassation's decision is based on common sense.

Currently, internal investigations in labor law are not regulated by any legislation.

When an employer receives a complaint of moral or sexual harassment, it must conduct an investigation.

This investigation may be conducted internally or by a specialized external firm.

This lack of rules creates legal uncertainty for employees. Both for those accused of moral or sexual harassment and for those who have (or have not) experienced such harassment.

The Court of Cassation has provided a number of guidelines, but they are insufficient (see our article "Internal Investigations (Moral or Sexual Harassment): Overview of Case Law 2022").

In a framework decision dated February 5, 2025, the Defender of Rights proposed 49 recommendations to harmonize internal investigation operations.

The Defender of Rights proposed, in particular:

a- Accessibility of the reporting system.

Companies must guarantee the accessibility of reporting systems to all employees, including former employees and applicants.

In this regard, several channels must be available, including email, telephone, online chat, etc.

Furthermore, anonymity must not be a reason for systematically excluding reporting.

b- Protection of whistleblowers. The employer must implement enhanced prevention and support measures, including ensuring the prompt transmission of the occupational physician's contact information to alleged victims, witnesses, and those involved.

Victim protection also includes the removal of the employee involved immediately upon completion of the investigation and ensuring strict confidentiality of the information collected.

c- Investigation Procedure.

The internal investigation must be initiated within a maximum of two months, without waiting for possible legal proceedings, and must be concluded promptly.

The employer must prioritize investigators trained in discrimination and guarantee their impartiality, avoiding entrusting the investigation to a department implicated in the reported incidents.

d- Conclusions and Follow-Up.

The investigation must result in a detailed report, including the facts reported and the measures taken.

The solution given by the Court of Cassation in its ruling of June 18, 2025, is not new.

In a départage judgment of 14 January 2021, the Paris industrial tribunal considered that "if company Z provides evidence of an investigation by the CHSCT subsequent to the employee's referral to the industrial tribunal, concluding, following a series of interviews held on 22 November and 7 December 2017, that there was no moral harassment, on the grounds that the grievances raised by Ms X during her hearing were imprecise, this investigation, which confirms the point of view adopted by the employer on 1 September 2017 and contradicts the terms of a first CHSCT investigation carried out in 2016, cannot replace the assessment of the industrial tribunal" [1]. In its decision of 18 June 2025, in ruling that the dismissal was without real and serious cause and dismissing the internal investigation, the Court of Cassation noted in particular that the Paris Court of Appeal:

• noted, on the one hand, that the facts reported by Ms. [F] were not confirmed by any person who had witnessed them and that the report of the interview with Mr. [G], heard by the investigation committee, was not produced, even though the latter had received confidences from Ms. [F] in 2017 concerning two of the four incidents of which she said she had been the victim at the hands of the employee and, on the other hand, that the facts described by Ms. [L] were not confirmed by any other person even though employees had witnessed them according to the person concerned; • noted that no other person indicated having personally witnessed the remarks made by the employee regarding his wife as recounted by Mr. [H], and it did not appear that he had personally witnessed the other facts mentioned by him, in addition to the fact that the relevant passages of his interview report had been truncated, with the names of the individuals cited being redacted, without these facts being corroborated by other evidence.

• finally noted that the entire investigation was not submitted for trial, since only five reports out of the fourteen interviews conducted were produced.

This decision is to be welcomed.

In labor law, the rules governing internal investigations are that there are none.

The employer does what it wants.

This creates legal uncertainty for both victims and defendants. We believe it's important to legislate quickly and provide clear rules for internal investigations in labor law.

Both employees and employers will benefit.

Sources.