In the decision of September 25th, 2019 (n° 17-31171), the Court of Cassation considers that the "game of reciprocal seduction" between the superior and the employee who pleaded to be harassed sexually, allowed to dismiss this qualification of harassment sexual.
This judgment is not published in the bulletin of the judgments of the Court of Cassation.
1) Decision of September 25th, 2019 of the Court of Cassation
Engaged April 3, 2000 by the Transdev Ile-de-France as team manager to exercise the last state of the contractual relationship the functions of operating manager, MG was dismissed for misconduct on July 31st, 2014, for acts of sexual harassment.
In a judgment of October 11th, 2017, the Court of Appeal of Versailles considered that the dismissal for sexual harassment was not based on a serious misconduct and it condemned the company to pay to the employee sums as compensation compensation notice , paid vacation leave, severance pay, salary on lay-off and related vacation pay.
The company has appealed in cassation.
In a judgment of September 25th, 2019, the Court of Cassation dismissed the company's appeal.
The Court of Cassation nevertheless rejects the appeal.
It states that "having noted, by own reasons and adopted, that the employee had sent, from his business phone, repeatedly and durably between 2011 and 2013, text messages with inappropriate content and pornographic to an employee with whom he had entered in a game of reciprocal seduction, the court of appeal could deduce that these facts did not constitute a serious fault making it impossible to maintain the employee in the company; that exercising the powers it has under Article L. 1235-1 of the Labor Code, it decided that these facts constituted a real and serious cause of dismissal ".
2) Analysis by CHHUM AVOCATS law office (Paris, Nantes, Lille)
2.1) Manager / subordinate mutual seduction disqualifies sexual harassment → serious misconduct cannot be accepted
Moreover, in this case, the operations manager had sent, from his business phone, repetitively and durably between 2011 and 2013, text messages with inappropriate and pornographic content to an employee with whom he had entered a game of seduction reciprocal.
The Court of Cassation following the argument of the Court of Appeal of Versailles considers that these facts do not constitute a serious fault making it impossible to maintain the employee in the company.
Article 1153-1 of the Labor Code states that "Any act of harassing any person for the purpose of obtaining favors of a sexual nature for his benefit or for the benefit of a third party is prohibited".
The Court of Cassation considers that there is a game of "mutual seduction" and not sexual harassment because of the attitude of the employee and the relationship context between the two employees.
2.2) Sending SMS to inappropriate and pornographic content = loses all authority and credibility to the manager → Justifies a disciplinary dismissal
First of all, the Court of Cassation considers that can justify a disciplinary dismissal, the sending by a superior to his subordinate, from his business phone, text messages with inappropriate content and pornographic, thus adopting a behavior making him lose all authority and all credibility.
Messages of a pornographic nature are relatable to the company and incompatible with the responsibilities of the supervisor.
It should be noted that the phone used by the manager to send pornographic text messages was his business phone.
It is likely that the solution would have been the same if the SMS had been sent with his personal phone, because the manager must be exemplary behavior.
This decision must be approved.
To read all the article, please click on the link below
Court of Cassation September 25th 2019, n° 17-31171
Porn at work: beware of dismissal for serious misconduct https://www.village-justice.com/articles/porno-work-attention-lawen-law-for-fault-grave-cass-October-2018,29747.html
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083