The Court of Cassation establishes the existence of institutional moral harassment

The Court of Cassation establishes the existence of institutional moral harassment

Crim. 21 Jan. 2025, FS-B+R, no. 22-87.145 France Télécom Case

On January 21, 2025, the criminal chamber of the Court of Cassation rendered an unprecedented decision against former directors of the company France Telecom (now Orange).

1. At the origin of the litigation: numerous job cuts in a climate of anxiety

From 2006, the CEO and several executives of France Telecom implemented a corporate policy aimed, over three years, at eliminating 22,000 jobs and encouraging the mobility of 10,000 employees.

In December 2009, a union filed a complaint for moral harassment against the company and certain directors who were indicted for implementing a policy "aimed at destabilizing employees and agents and creating an anxiety-inducing professional climate."

 

In June 2018, the company, the CEO, the director of French operations, the deputy executive director, and the HR director were referred to the criminal court for moral harassment. Other executives were referred for complicity in the same offense.

By judgment of December 20, 2019, the criminal court declared the company and certain directors guilty of acts of moral harassment.

 

The Paris Court of Appeal confirmed the first instance decision by judgment of September 30, 2022.

The directors of the company France Telecom have appealed against this judgment.

2. The Court of Cassation establishes the definition of institutional moral harassment:

The Court of Cassation had already ruled that management methods implemented by a hierarchical superior could constitute moral harassment if they manifested, for a specific employee, through repeated actions whose purpose or effect was to cause a deterioration of working conditions likely to harm their rights and dignity, alter their physical or mental health, or compromise their professional future (Cass. Soc. 22 Oct. 2014).

 

 

The Court of Cassation now defines institutional moral harassment as "actions defining and implementing a company policy aimed at structuring the work of all or part of a group of employees, actions which, through their repetition, latently or concretely lead to a potential or actual deterioration of the working conditions of that group and which exceed the limits of management authority."

It defines a company policy as "the main human resources policy, a component of the general company policy, determined by the person or persons who have the power and ability to enforce their decisions on employees and to modify their behaviors."

It considered that actions falling within the scope of Article 222-33-2 of the Penal Code, and which may characterize a situation of institutional moral harassment, constitute "actions aimed at stopping and implementing, knowingly, a company policy whose purpose is to degrade the working conditions of all or part of the employees in order to achieve a reduction in staff or to achieve any other objective, whether managerial, economic or financial, or which has the effect of such degradation, likely to harm the rights and dignity of these employees, to alter their physical or mental health or to compromise their professional future."

3. How could leaders be prosecuted on the basis of institutional moral harassment?

The Court of Cassation had to consider whether company directors can be prosecuted on the basis of the offense of moral harassment at work for having, knowingly, defined and implemented a general company policy likely to lead to a deterioration of employees' working conditions.

The Court of Cassation relied on three criteria to establish the liability of the directors:

– It is not necessary to specifically identify the victims to characterize the offense

To characterize the offense, the Court of Cassation specifies that when the actions result in the deterioration of working conditions, it is necessary to precisely designate the victims of such actions. However, when the harassing actions are intended to cause such deterioration, it is not required that victims be individually designated or that they be in direct relation with the perpetrators of these actions, provided that they are part of the same work community.

The High Court is careful to specify that the term "others" in Article 222-33-2 of the Penal Code on moral harassment at work can be understood as "a collective of unidentified employees."

– Being aware of the negative effects of the policy is sufficient to challenge the directors

Despite what the defendants argued, it is not necessary, in order to characterize the offense, to demonstrate that the managers intended to harm the employees in the implementation of the policy. Indeed, applying its case law on the matter, the Criminal Chamber considered that the intentional element of the offense of moral harassment was established as soon as the managers were aware of the negative effects of maintaining the adopted method on the health of employees and their working conditions.

In this case, through concrete actions ("pressure exerted on the control of departures in the monitoring of staff numbers at all levels of the hierarchical chain", "taking departures into account in the remuneration of management members" and "conditioning of middle management to staff reduction during training sessions"), the managers created an anxiety-inducing atmosphere within the company and thus far exceeded their normal management and control powers.

– Be attentive to the consequences of implemented policies and react to alerts

In its decision, the Court of Cassation not only criticized the directors for having engaged in positive and repeated acts in implementing the company's policy but also for failing to react when they became aware of its harmful effects on employees. In this case, management had notably not taken into account the exercise of the right to alert by unions regarding endangerment of employee health.

4. What recommendations for the company?:

Companies must become aware of the serious consequences for the company of isolated behaviors by managers when they contribute to an unacknowledged common objective of causing employees to leave.

Employers must set up alert systems allowing employees to report potential situations of suffering at work and systematically organize training on psychosocial risks for managers.

In the event of an alert triggered by an employee or by employee representative bodies, it is recommended to conduct an investigation when the reported facts appear detailed and precise.
Hugo REVILLON
Benoit SEVILLIA