In a decision of November 26, 2019 (n° 19-80360), the Criminal Division of the Court of Cassation ruled on the defamatory nature of the denunciation (1), by an employee, of acts of moral and sexual harassment and sexual assault, of which she was the victim and which she blamed on her employer.
1. Reminder of the facts
Ms. X, an employee of an "association created to develop denominational education", is the author of an email in which she accuses the vice-president of the said association of "sexual assault, sexual and moral harassment."
She sends the email to a whole series of people: the director general and the spiritual director of the association, the labor inspector, the son of the vice president targeted by the accusations and his own husband.
His employer summoned him to appear in the Criminal Court, which declared him "guilty of public defamation of an individual".
The employee is appealing this decision.
2. The pleas based on the provisions of the French Penal Code
The Court notes that, both in the title of the message and in the body of the message, "the statements made impute to the latter acts of sexual aggression and sexual and moral harassment [...] which are prejudicial to honor and to the consideration since they are likely to constitute offenses and sufficiently precise to be the subject of a debate on their truth ".
To defend herself, the employee had two solutions: the first was to prove that the facts denounced were proven, and the second was in the excuse of good faith.
The judges will not be convinced by either of the two hypotheses.
On the one hand, the judges of the Criminal Chamber of the Court of Cassation, like the Court of Appeal, first of all consider that "if there is evidence to establish the reality of harassment moral, even sexual in the perception that could have Ms. X, nothing proves the existence of sexual assault that it dates from the year 2015 [...] ".
On the other hand, it is noted that "Mrs X ... could not benefit from the excuse of good faith, the disputed remarks not having a sufficient factual basis".
3. The plea drawn from the provisions of the French Labor Code
Then, the judges will consider that to benefit from the "cause of criminal irresponsibility, pursuant to Article 122-4 of the Criminal Code (1)", the employee must have denounced the acts "under the conditions provided for in Articles L 1152-2, L. 1153-3 and L. 4131-1, paragraph 1, of the Labor Code ".
Thus, in order to benefit from such an exemption, the employee could only report the facts to "her employer or to bodies responsible for enforcing the provisions of the Labor Code".
However, having regard to the mailing list of the disputed e-mail, Mrs X had clearly departed from the conditions laid down by the Labor Code. By sending the email of denunciation to multiple incompetent people to intervene, or for some, external to the association, the employee had not respected the limits set in the matter. In this way, she could no longer claim the protection that these provisions confer.
Thus, it appears from the judgment that the denunciation must be made to a limited list of persons, whose common point is to be able to take measures intended to apply the provisions of the Labor Code.
Consequently, the judgment goes further than the provisions of the Labor Code in its articles L. 1152-2, L. 1153-3, and in particular L. 4131-1 (2) which states that "the worker shall immediately alert the employer of any work situation which he has reasonable cause to believe presents a serious and imminent danger to his life or health and any deficiencies he finds in protective systems ".
(1) Cass. Crim., November 26, 2019, n° 19-80360:
(2) L. 4131-1, French Labor Code: https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006903155&cidTexte=LEGITEXT000006072050&dateTexte=20080501
Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris
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