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False accusations of discrimination justify a disciplinary dismissal

Published on : 02/04/2021 02 April Apr 04 2021
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Newsletter / Recent Case Law

An employee who denounces or reports acts of discrimination benefits from disciplinary immunity: he may not be subject to any sanction on this ground. Any such sanctions are declared null and void by art. L. 1132- 3 of the French Labour Code. 
 
However, the Court of Cassation, in a judgment of 13 January 2021, sets a limit to this principle. The court held that a report made in bad faith may cancel this immunity, which, it states, presupposes that the employee is aware of the false nature of the facts he is reporting. 
 
It is not enough that the facts denounced lack full truth. Only intentionally false statements (lies), which their author knew to be inaccurate, may be subject to disciplinary proceedings. The solution is hardly surprising and is based on a principle of case law established in the field of harassment.
 
In the case at hand, the employee had sent a letter to the group's president and to his line manager to denounce discrimination on the grounds of his origin by the sales manager on 27 February 2012. 
 
He had also referred the matter to the French Human Rights Defender, who closed the case on 22 December 2014.
 
The employer accused him of having made such accusations, knowing that they were false, and dismissed him for serious misconduct on 22 March 2012. 
 
The employee brought the case before the labour courts. However, the Court of Appeal did not find in his favour. Taking the view that his bad faith had not been established, he appealed to the Supreme Court. But the social chamber agreed with the judges at first instance and rejected the appeal. 
 
The Court of Cassation recalled in its decision that "under the terms of Article L. 1132-3 of the Labour Code, no employee may be sanctioned, dismissed or subjected to a discriminatory measure for having witnessed or reported the conduct defined in Articles L. 1132-1 and L. 1132-2. By virtue of Article L. 1132-4 of the same code, any provision or act taken with regard to an employee in disregard of the provisions of this chapter is null and void.”
 
It deduced from this that "an employee who reports facts of discrimination cannot be dismissed on this ground, except in bad faith, which can only result from the employee's knowledge of the falsity of the facts he or she is reporting and not from the mere fact that the facts reported are not established". 
 
This is the first time that the Supreme Court has decided this in a published decision concerning allegations of discrimination (it had already decided this in an unpublished decision in 2020). The solution is in line with Article 3 of Law No. 2008-496 containing various provisions for adapting to EU law in the field of anti-discrimination, which reserves immunity to employees acting in good faith. 
 
Moreover, this decision is in line with a well-established line of case law concerning the reporting of other types of behavior. The Social Chamber of the Supreme Court had already adopted this position with regard to the reporting of: 
 
-  moral harassment, pursuant to Article L. 1152-2 of the Labour Code. This case law is also regularly recalled by the Cour de cassation. 
 
-  of a misdemeanor or crime of which the employee had knowledge in the performance of his duties, pursuant to Article L. 1132-3-3 of the Labour Code, relating to the protection of whistleblowers. 
 
Although it may seem difficult to prove that the denunciation was false (since the mere fact that the discrimination was not actually established is not enough...) it is not impossible. This is demonstrated by the case at hand: 
 
The Supreme Court considered that, after having held that the alleged discrimination had not been established, the Court of Appeal was right to deduce that the employee was aware of the falsity of the alleged discrimination on the grounds of his origin, from the following elements:

- the employee, who was in between two missions, had been offered several missions including one at the same time as the allegation of discrimination and the employee proved to be particularly disengaged;
 
-   the allegation had been formulated "in very general terms without invoking detailed facts”;
 
-  the employee was, as of December 2011, “determined to leave the company", and wished "to obtain a conventional termination of the employment contract by seeking to impose his financial conditions”;
 
-  no warning had been given during the employment relationship to the staff representatives, the occupational health service or the labour inspectorate;
 
-  the employee had not raised any link with his origins prior to the emails sent to his superiors and the Human Rights Defender in February 2012. 
 
Considering, in the light of these elements, that the employee's bad faith was demonstrated, the Supreme Court therefore approved the Court of Appeal's decision to consider the dismissal for serious misconduct (“faute grave”) justified. 
 
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