Who bears the burden of proving the link between an employee reporting harassment and their dismissal?

According to article L.1152-2 and article L.1152-3 of the French Labour Code, any sanction (including a dismissal) against somebody who was a victim of harassment or who reported it is invalid.

In most cases, the link between the sanction and the harassment or reporting of harassment is not explicit. Especially, the dismissal letter often does not specifically refer to such event.

The question submitted to the French Labour Court in a recent case of October 18, 2023 was linked to the burden of proof of such link between the sanction and the reporting of harassment.

In this decision, an employee was dismissed for serious misconduct, considering numerous and repeated acts of insubordination (refusal to perform some duties, absence without justification).

The employee filed a claim before the Employment Tribunal, claiming that her dismissal was null and void since this sanction had been taken following her complaint of sexual harassment.

The Court of Appeal gave merits to the employee’s claim considering that the dismissal was notified just after the employee had reported a sexual harassment so that it had “clearly had an influence on the employer’s decision“, which moreover did not establish that the report had been made in bad faith.

The French Supreme Court overruled the Court of appeal’s decision and detailed the rules applicable in such a situation:

  • Either the dismissal is fair, in which case “it is for the employee to evidence that the termination of their employment contract was a retaliatory measure linked to the reporting of harassment“;
  • Or the dismissal is unfair, in which case “it is for the employer to demonstrate that there is no link between the employee’s reporting harassment and their dismissal“.

As a consequence, the Court of Appeal should have investigated “whether the grounds set out in the letter of dismissal characterised a serious misconduct“. The mere fact that the dismissal occurred almost at the same time as a report of harassment was not sufficient to conclude that the dismissal was null and void.

French Supreme Court, Oct. 18, 2023, No. 22-18.678

This article was first published on 15 November 2023 by our French member firm MGG Legal. To know more about this case or for any employment related question, please reach out to our representative Marijke Granier-Guillemarre, Founder and partner at the firm.