Barring abuse, the employee enjoys freedom of expression within and outside the company. Any limitation to this fundamental freedom must be justified by the nature of the task to be performed and proportionate to the aim sought (Art. 10 §1 of the ECHR; C. trav. art. L. 1121-1; Cass. soc., June 22, 2004, No. 02-42.446).
As long as no abuse is characterized in the context of the exercise of this freedom, the employee cannot be subject to a sanction based on it, failing which it is null. Since Ordinance No. 2017-1387 of September 22, 2017, the rule is explicitly enshrined in Article L. 1235-3-1 of the Labor Code.
By this decision of June 29th, 2022 (n° 20-16.060), the Court of Cassation affirms that the dismissal of an employee based, even partially, on the exercise of his freedom of expression is null.
An employee, hired as an "Executive Director" within the TEREOS group and assigned to the latter's subsidiary located in Romania, is dismissed for serious misconduct.
The dismissal of the Executive Director was justified by having:
- sent a letter to the chairman of the group's management board questioning the regional director as well as the group's strategic choices, while insinuating that the latter had been informed of acts of corruption;
- refused to assume his responsibilities inherent in his duties;
- threatened to communicate to third parties, such as Romanian institutions, local teams and suppliers, facts of which he would have knowledge, in order to negotiate his departure. In a judgment of May 7th, 2020, the Court of Appeal of Amiens considered that the dismissal was void. The company appealed to the Court of Cassation.
2) Absence of characterization of an abuse of the exercise of freedom of expression
In a judgment of June 29, 2022, the Court of Cassation validates the reasoning of the Court of Appeal of Amiens according to which the dismissal of the employee is based in part on the latter's exercise of freedom of expression and is, by therefore, zero.
More specifically, the Court of Cassation notes that the trial judges found that the letter sent by the employee to the chairman of the group's management board (first complaint detailed above):
- followed the lack of reaction from his superiors, whom he had alerted on December 2, 2016 to difficulties in terms of security and corruption;
- did not contain any offensive, excessive or defamatory language against the employee's immediate superior or the employer.
3) Theory of the "contaminant reason" which leads to the nullity of the dismissal
In doing so, the Court of Cassation confirms the application by the Court of Appeal of the so-called "contaminant reason" theory according to which the trial judges do not have to assess the other grievances invoked on the basis of the dismissal when the one of them alone justifies the nullity of the dismissal. (Conclusions of the Advocate General, Mrs LAULOM, p. 3: https://www.courdecassation.fr/getattacheddoc/62bbec82cce2f878c0f394df/8b4f6161ecd3c8bae44c0eb3a74394ca).
The same theory has also been applied by the Court of Cassation, particularly in the event of violation of the employee's right to take legal action (Cass. soc., 21 Nov. 2018, n° 17-11.122: https:// www.legifrance.gouv.fr/juri/id/JURITEXT000037676936?isSuggest=true) or in matters of moral harassment (Cass. soc., 13 Feb. 2013, n°11-28.339: https://www.legifrance.gouv.fr/juri/id/JURITEXT000027078344?isSuggest=true).
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
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. Cass. soc., 29 June 2022, n° 20-16.060: https://www.legifrance.gouv.fr/juri/id/JURITEXT000046013516?isSuggest=true
. Opinion of Mrs LAULOM, General Counsel, June 29, 2022: https://www.courdecassation.fr/getattacheddoc/62bbec82cce2f878c0f394df/8b4f6161ecd3c8bae44c0eb3a74394ca
See our Articles on freedom of expression:
- F.CHHUM, "Journalists' rights: a transaction on freedom of expression is valid, PPDA/TF1", 22 Jan. 2014: https://blogavocat.fr/space/avocat-chhum/content/droit-des -journalists---a-transaction-on-freedom-of-expression-is-valid--c.-cass.-14.01.2014--ppda---tf1-_381f91d6-a920-4891-b19f-3f4ea25bad7c ;
- F. CHHUM, “Principle of a higher level of protection of the freedom of expression of a lawyer in the criticism of the action of magistrates during legal proceedings”, 17 Dec. 2016: https://blogavocat.fr/space/frederic.chhum/content/principe-d%E2%80%99un-niveau-plus-%C3%A9lev%C3%A9-de-protection-de-la-libert%C3%A9-d%E2%80%99expression-d%E2%80%99un-avocat-dans-la-critique-de-l%E2%80%99action-des-magistrats-%C3%A0-l%E2%80%99occasion-d%E2%80%99une-proc%C3%A9dure-judiciaire-c.-cass.-16122016-n%C2%B008-86295_;
- F. CHHUM, S. BOUSCHBACHER, "Sexist "joke" of a television presenter: the Court of Cassation judges the dismissal justified", 29 April 2022: https://www.village-justice.com/articles/blague-sexiste-animateur-television-cour-cassation-juge-licenciement-justifie,42462.html;
- F. CHHUM, S. BOUSCHBACHER, “Whistleblowers: nullity of the dismissal following the denunciation by the employee of illegal acts”, 7 July. 2021https://www.village-justice.com/articles/lanceurs-alerte-nullite-licenciement-notifie-suite-denonciation-par-salarie,39826.html