In three rulings dated January 14, 2026 (23-19.947, 24-19.583 and 24-13.778) published in the official bulletin, the Court of Cassation adopted a new method of analysis applicable when an employee claims to have been dismissed or disciplined for the non-abusive exercise of their freedom of expression.

Judges must now weigh the employee's right to freedom of expression against the employer's right to protect its legitimate interests.

The judge must now consider:

- The content of the disputed remarks;

- The context in which they were spoken or written;

- Their scope and impact within the company;

- The negative consequences for the employer

The judge's review no longer focuses on the existence of a potential abuse in the exercise of the employee's freedom of expression, but solely on the necessity and proportionality of the measure taken by the employer.

1) The 3 rulings of January 14, 2026: a new framework for interpreting dismissals for violations of an employee's freedom of expression

1.1) Previous case law: abuse, the only limit to freedom of expression

According to established case law, employees enjoy freedom of expression both within and outside the company.

The employer may only impose restrictions justified by the nature of the task to be performed and proportionate to the objective pursued (Cass. soc., March 27, 2022, No. 11-19.734).

The only limit to the exercise of freedom of expression is abuse, which is characterized by the use of insulting, defamatory, or excessive language (French Supreme Court, Social Chamber, September 23, 2015, No. 14-14.021).

Consequently, any dismissal of an employee based on the non-abusive exercise of their freedom of expression is null and void (French Supreme Court, Social Chamber, February 16, 2022, No. 19-17.871).

1.2)  The French Supreme Court's New Approach Since the Three Rulings of January 14, 2026

Since these rulings of January 14, 2026, by the French Supreme Court, when an employee believes they have been dismissed for exercising their freedom of expression in a non-abusive manner, it is the judge's responsibility to determine whether the employer's decision is justified and proportionate to the objective pursued.

The judge must weigh the employee's right to freedom of expression against the employer's right to protect their legitimate interests.

The Court of Cassation affirms that: “The judge must consider the content of the disputed remarks, the context in which they were spoken or written, their scope and impact within the company, as well as the negative consequences for the employer, and then assess, based on these various criteria, whether the sanction imposed was necessary and proportionate to the objective pursued” (Cass. soc., January 14, 2026, No. 23-19.947).

Thus, the judge must now consider:

- The content of the disputed remarks;

- The context in which they were spoken or written;

- Their scope and impact within the company;

- The negative consequences for the employer.

In conclusion, the judge's review no longer focuses on the existence of a potential abuse in the exercise of the employee's freedom of expression, but solely on the necessity and proportionateness of the measure taken by the employer. 1) Consequences of these rulings

2.1) The first ruling of January 14th, 2026 (23-19.947)

In this case, a technician personally handed two drawings he had made to the Human Resources Manager.

The first drawing depicted the employee in his work clothes, with tears in his eyes and the caption "(...) physically damaged," and the second drawing depicted a man wearing glasses throwing workers into a trash can, in which the Human Resources Manager recognized himself.

The Court of Appeal had refused to overturn the employee's dismissal for misconduct, on the grounds that these caricatures damaged the honor and reputation of a colleague and disrupted the company's operations.

The new method of analysis led the judges of the Court of Cassation to overturn the Court of Appeal's decision, on the grounds that the context in which the caricatures were handed over had not been taken into account.

In this case, the employee cited health problems and a request for adjustments to his workstation, which went unanswered by the employer.

Furthermore, the judges of the Court of Cassation considered that the actual impact of the caricatures, their dissemination within the company, and the extent to which the HR manager's reputation was damaged had not been taken into account.

2.2) The second ruling of January 14th, 2026 (24-19.583)

An employee holding the position of director within an association in the healthcare and social services sector was dismissed for serious misconduct following critical remarks that discredited the managing director.

The employer challenged the ruling that the dismissal was null and void.

In this ruling, the Court of Appeal was also criticized for failing to examine all the grievances against the employee, for isolating certain remarks to conclude that they constituted a legitimate exercise of freedom of expression, and for failing to assess the necessity and proportionality of the sanction in light of the employer's objective.

The Court of Cassation quashed and set aside the ruling issued by the Dijon Court of Appeal.

2.3) The third ruling of January 14th, 2026 ( 24-13.778)

In this case, a caregiver in a nursing home for dependent elderly people was dismissed after refusing to care for a resident suffering from Alzheimer's disease.

The Court of Appeal found that the employee was accused of aggressive behavior and that the dismissal, given the risk of mistreatment of this highly vulnerable population, was necessary, appropriate, and proportionate to the objective of providing compassionate and safe care for vulnerable elderly people.

The judges of the Court of Cassation upheld the Court of Appeal's decision, finding that the context, scope, and consequences of the employee's remarks made the sanction proportionate.

The Court of Cassation noted that the decision was based on a fair balance between the employee's right to freedom of expression and her employer's right to protect its interests.

Source  :

Cour de Cassation, Chambre sociale, 27 mars 2022, n° 11-19.734 : Cour de cassation, civile, Chambre sociale, 27 mars 2013, 11-19.734, Publié au bulletin - Légifrance

Cour de Cassation, Chambre sociale, 23 septembre 2015, n° 14-14.021 : Cour de cassation, civile, Chambre sociale, 23 septembre 2015, 14-14.021, Publié au bulletin - Légifrance

Cour de Cassation, Chambre sociale, 16 février 2022, n° 19-17.871 : Cour de cassation, civile, Chambre sociale, 16 février 2022, 19-17.871, Publié au bulletin - Légifrance

Cour de Cassation, Chambre sociale, 14 janvier 2026, n°23-19.947 : Pourvoi n°23-19.947 | Cour de cassation

Cour de Cassation, Chambre sociale, 14 janvier 2026, n° 24-19.583 : Pourvoi n°24-19.583 | Cour de cassation

Cour de Cassation, Chambre sociale, 14 janvier 2026, n°24-13.778 : Pourvoi n°24-13.778 | Cour de cassation

. Licenciement pour violation de la liberté d’expression du salarié = pas de déduction des revenus de remplacement https://www.village-justice.com/articles/licenciement-pour-violation-liberte-expression-salarie-pas-deduction-des,51424.html

. Violation de la liberté d’expression : la Cour d’appel confirme la nullité du licenciement d’un Directeur du CRE RATP https://www.village-justice.com/articles/violation-liberte-expression-cour-appel-confirme-nullite-licenciement-directeur,30085.html

. Lanceurs d’alerte : Nullité du licenciement d’un salarié ayant dénoncé de bonne foi des faits susceptibles de recevoir une qualification pénale (Cass. Soc. 30 juin 2016, n°15-10.557) https://www.chhum-avocats.fr/publications/lanceurs-dalerte-nullite-du-licenciement-dun-salarie-ayant-denonce-de-bonne-foi-des-faits-susceptibles-de-recevoir-une-qualification-penale-cass-soc-30-juin-2016-n015-10557

. Licenciement et liberté d’expression - licenciement d’un salarié en partie fondé sur une violation de la liberté d’expression = nullité du licenciement (c. cass. 29 juin 2022, n° 20-16.060) https://consultation.avocat.fr/blog/frederic-chhum/article-44609-licenciement-et-liberte-d-expression-licenciement-d-un-salarie-en-partie-fonde-sur-une-violation-de-la-liberte-d-expression--nullite-du-licenciement-c.-cass.-29-juin-2022-n-20-16.060.html

. Licenciement d'un cadre dirigeant pour fautes graves pour l’envoi de messages privés à caractères sexuels = licenciement nul pour violation de la vie privée (cass. soc. 25 sept. 2024, 23-11.860) https://www.chhum-avocats.fr/publications/span-stylefont-familyquotcalibriquotsans-serifstronglicenciement-d39un-cadre-dirigeant-pour-fautes-graves-pour-lrsquoenvoi-de-messages-priveacutes-agrave-caractegraveres-sexuels-licenciement-nul-pour-violation-de-la-vie-priveacutee-cass-soc-25-sept-2024-2

Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

Léonie Bergeran juriste

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

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