When labor law meets social networks, understanding it becomes all the more complex as the rights of employees are weakened.
With the advent of the internet, and more specifically of social media, the distinction between personal and professional life has become increasingly thin, and sometimes even indistinguishable.
Facebook, LinkedIn and Instagram almost become working tools in their own right when they remain at the same time the means of expression of the private life of each employee, and are used both during working time and outside of work. this one.
- Protection of the employee's personal life
If “everyone has the right to respect for his private life” (article 9 of the Civil Code, article 8 ECHR, article 12 of the UDHR), and in particular any employee against his subordination to the employer's power, it is appropriate in On the other hand, to draw a clear border between personal and professional life, so that each employee can protect himself against accusations of defamation or of insulting his employer, as soon as a publication relates to the latter.
Because in principle, the employee enjoys his freedom of expression guaranteed both constitutionally (Articles 10 and 11 of the DDHC) and internationally (Article 10 of the ECHR).
However, this freedom is not absolute but limited when it concerns insulting or defamatory remarks (articles 32 and 33 of the law of July 29, 1881 on freedom of the press).
- The limits of the employee's freedom of expression
In labor law, that is to say in employee - employer relations, the abuse of the use of this freedom is characterized when the comments are made public.
In this regard, the Court of Cassation is experiencing a fairly important and constantly renewed dispute, by which it recently decided by a judgment of September 30, 2020 (n ° 19-12.058) that only comments made on private accounts and without limit of threshold as to the number of members, are protected by the private life of the employee.
- The existence and guarantee of legal action
However, both on the risks of reprisals by the employer against the employee and on the effectiveness of a denunciation on social networks, the employee is advised to take the legal and legal route of recourse to court. report the employer's actions, rather than doing so anonymously on Instagram.
Indeed, denouncing the wrongdoing of his employer on social networks, could be akin to defamation and then be accompanied by serious consequences for the employee such as dismissal for serious misconduct in addition to criminal penalties, even if the private publications are currently protected by case law, it is better to guard against any undesirable effect in order to protect more effectively your most fundamental rights.
If the employee can find on the internet a space to express himself freely (wrongly!) As well as a certain comfort and support from Internet users, the internet will never provide the employee with an effective solution, nor the guarantee of protection and the application of his rights against the employer.
This is why it seems necessary to reconsider the basic means of action of the employee against the employer, including the possibility of taking legal action.
1) Nature of the employee's right to take legal action: fundamental right institutionally guaranteed
The employee's right to take legal action is a fundamental right.
Indeed, Article 6 of the European Convention for the Protection of Human Rights provides that "everyone has the right to have their case heard fairly, publicly and within a reasonable time, by an independent and impartial tribunal".
Likewise, with regard to the first paragraph of the preamble to the Constitution of October 27, 1946 and article 16 of the Declaration of the Rights of Man and of the Citizen of 1789, it appears that the right to sue ranks among the fundamental rights.
This is why the social chamber of the Court of Cassation in a judgment of February 6, 2013 enshrined this employee's right as a fundamental freedom (n ° 11-11.740).
Consequently, no one can restrict or deprive the exercise of this right, not even the employer as specified in article L1121-1 of the labor code according to which "no one can bring to the rights of persons and individual freedoms and collective restrictions which are neither justified by the nature of the task to be accomplished nor proportionate to the aim sought ”.
In other words, the employer cannot oppose an employee exercising his right to take legal action by breaking his employment contract.
In this sense, an abundant case law constantly recalls this fundamental principle of labor law, like the judgment rendered by the social chamber of the Court of Cassation on September 21, 2018 (n ° 17-11.122) which results of several judgments including the one delivered on March 28, 2006 (n ° 04-41.695).
Indeed, these decisions of the High Court all recall that the right to institute justice is a "constitutionally guaranteed fundamental freedom" which nullifies any dismissal pronounced in this regard.
These same judgments also specify that this protection of the employee against dismissal by reason of their exercise of their right to take legal action, is valid not only when the employee has actually taken legal action, but also when he only expresses his intention in this regard.
The decision rendered by the Court of Cassation on November 21, 2018 stands out in that it affirms that the simple and only reference to the right to take legal action by the employee, in the letter of dismissal is sufficient for the right to pronounce the nullity of this last.
Moreover, the judges of the High Court guarantee the application of this right even when the employee's claim is unfounded (c. Cass, 05/12/2018, n ° 17-17.687).
Likewise, three recent judgments rendered on the matter on November 30, 2020 bear witness to this unwavering protection of this fundamental right belonging to the employee. The employee is in fact protected against any breach of the employment contract, even when this has not yet been pronounced by the employer (c. Cass, November 30, 2020, n ° 19-13.593).
Consequently, the employee is completely legitimate, and this at any time and any place, to take legal action without having to fear any sanction from the employer, under penalty of seeing the termination of employment as void.
2) Concrete exercise of the employee's right to take legal action
In order to be able to take legal action against the employer, the employee must refer the matter to the industrial tribunal, the terms of which differ depending on the reason for the referral.
In the event of dismissal pronounced following or concomitantly with a legal action brought by the employee, the latter benefits from an adapted system of proof, to encourage him to appeal to justice.
While in the event of discrimination, article L1134-1 reverses the burden of proof for the employee, it is the same in the event of dismissal due to the exercise of legal action by the employee, according to a judgment of the Court of Cassation rendered on February 6, 2013 (n ° 11-11.740).
Indeed, the employee is no longer responsible for proving the existence of a fault committed by the employer, because when the latter violates this fundamental right of the employee to take legal action, it is fully presumed. right as at fault.
Consequently, it suffices only for the employee to present to the judge the facts which suggest the existence of a violation of the right to act and in a second step, the employer is responsible for proving his absence of fault by elements objectives and unrelated to any desire to dismiss or sanction the employee for exercising the right to take legal action (cass. soc, February 6, 2013, n ° 11-11.740)
This protection of the employee applies as much to the dismissal pronounced against him, as to any sanction.
Nevertheless, it is advisable to qualify the remarks, because if indeed, the letter of dismissal refers expressly to the legal action brought by the employee, then this one is necessarily null (cass. Soc. September 21, 2018), while if the letter does not mention this action, the probationary regime as stated above is somewhat different.
The judgment of November 30, 2020 (n ° 19-10.633), which recalls a decision already rendered by the same Court on October 9, 2019 (n ° 17-24.773), indicates to this end that the trial judges must first of all verify the existence of a real and serious cause for the dismissal so that the employee (or the employer if the dismissal is deemed to be unfair) demonstrates the causal link between his dismissal and his legal action: "When the facts invoked in the letter of dismissal characterize a real and serious cause of dismissal, it is up to the employee to demonstrate that the termination of his employment contract constitutes a retaliatory measure against a legal action brought to assert his rights" .
In the event that the judges do not accept a real and serious cause for the dismissal pronounced without express mention of the legal action, it would therefore be necessary to think in the absence of still clear case law on the subject, that the dismissal is then null as Article 1134-4 provides in the matter of discrimination: "The dismissal of an employee following a legal action brought by this employee or in his favor, on the basis of the provisions of chapter II is null and void. , when it is established that the dismissal has no real and serious cause and in fact constitutes a measure taken by the employer as a result of this legal action ”.
Likewise, case law concerning the probationary regime provided for in favor of the employee is also tempered when legal action is brought by the employee at the same time as a dismissal measure.
In this regard, the judgment rendered on November 4, 2020 by the Court of Cassation (n ° 19-12.367) specifies that “the mere fact that a legal action is contemporaneous with a dismissal measure does not imply that the latter this results from an infringement of the fundamental freedom to take legal action ”.
However, these clarifications and adjustments made by the Cour de cassation do not modify the very substance of the employee's right to act, which lies primarily in its fundamental nature.
Thus, as soon as a breach of the employment contract is pronounced due to the exercise of this right, whether or not the employee is in charge of demonstrating the link between the two, this breach will always be null.
3) Effect of the employee's right to take legal action
The interest for the employee to exercise his right to take legal action in order to denounce his employer for any wrongful act, lies above all in the concrete and effective effects of this action.
Indeed, article L. 1235-3-1 provides that the Macron scale which fixes the severance pay is not applicable in the event of nullity of the dismissal, in particular when the nullity results from a violation of a freedom. fundamental, including the freedom to take legal action.
The nullity of the breach of the contract is therefore an exceptional sanction insofar as, unlike unjustified or unfair dismissal, it has retroactive effects to the date of dismissal, considering that the latter never took place.
More concretely, the employee can then choose between reinstatement or compensation.
In the first choice, the employee will therefore return to the company without the employer's agreement being necessary and will benefit from eviction compensation corresponding to all the wages that he should have received between the notification of the dismissal. and its reinstatement (cass. soc, January 25, 2006, n ° 03-47.517).
In the second choice, if the employee does not wish to continue the performance of his employment contract or when his reinstatement is objectively impossible, he has the right to compensation payable by the employer and corresponding at least to the wages of the employees. last six months, cumulated with other indemnities relating to the dismissal itself, such as severance pay, compensation for notice, compensation for paid vacation.
In conclusion, legal action is ultimately the best option available to the employee when he wishes to denounce his employer.
In order to avoid any risk of accusation of defamation or insult and to this end incur up to 1 year imprisonment, a fine of 45,000 euros as well as dismissal for serious misconduct, rather than an anonymous denunciation on Instagram, the employee has every interest in taking legal action to best protect his interests and benefit in this regard from enhanced protection against any breach of his employment contract.
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Sarah BOUSCHBACHER juriste
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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