Newsletter
November – December 2022
SUMMARY:
Employer: How to react to a report of moral harassment made by one of its employees?
Article
Employer: How to react to a report of moral harassment made by one of its employees?
Companies are increasingly involved in the fight against moral and sexual harassment, leading management to have to act quickly and to intervene effectively in the case of reports of moral harassment.
The employer’s responsibility in the fight against moral harassment is based on his obligation to prevent professional risks and his obligation to protect the health and safety of employees.
However, the Labour Code is silent as to the means available to the employer to implement its obligations and it is case law that is gradually building the framework for the employer’s action.
How to proceed when an employee reports harassment in the company?
First of all, case law has established the need for the employer to organize an internal investigation in case of suspicions of harassment in the company in application of the safety obligation, regardless of whether the facts reported do not ultimately characterize a case of harassment (Cass. soc 27 November 2019 n°18-10551).
Consequently, conducting an internal investigation that will result in an investigation report becomes a method of proof for the employer to fulfil its obligations in terms of health and safety in case of denunciation of facts related to moral harassment.
Secondly, case law has outlined the method of the internal investigation by answering the following questions: Who should conduct the investigation? How should it be organized? What is the scope of the investigation?
The investigation must make it possible to determine whether the reported conduct is proven and whether it is sufficient to characterize moral harassment. Following the first verifications, the employer must take the necessary measures against the suspected person in order to protect the other employees, to preserve the evidence or to sanction the employee who committed the acts.
Depending on the nature of the facts, the measures may range from the implementation of training to learn how to better communicate within a team to sanctions that may lead to dismissal for serious misconduct. If the dismissal for gross misconduct is challenged, the defending party will tend to question the validity of the investigation report on which the dismissal decision is based.
Given the importance of the internal investigation and the report that results from it, companies are advised to establish a methodology for the internal investigation procedure beforehand in order to react quickly and effectively in the case of reports of moral harassment.
One of the first questions that arises in organizing the investigation is who will conduct the investigation?
The investigation must be conducted in accordance with the principle of impartiality. However, the jurisprudence considers that:
- The Director of Human Resources alone, without the participation of staff representatives can lead the internal investigation (Cass. Soc. June 1, 2022, No. 20-22058) ;
- The company may also call upon an external service provider (Cass. Soc. March 17, 2021, n° 18-25597);
On the other hand, it is a breach of the safety obligation to entrust the investigation to the employee’s direct superior when their misunderstanding is known and the investigation is conducted in a rushed and humiliating manner, without sufficient care or precautions (Cass. Soc. July 6, 2022, n° 21-13631).
Consequently, when it is not possible for the company to find an employee who is in an objective position regarding the facts, it is recommended to use an authorized third party for these internal investigations.
Then there is the question of the content and scope of the investigation.
Who should be interviewed during the investigation?
Interviews should be conducted in the following chronological order:
- Schedule an interview with the alleged victim first, and possibly a second interview during the investigation.
- Organize interviews with the direct witnesses of the denounced facts: It is not mandatory to interview all the witnesses present (Cass. Soc. January 8, 2020 n° 18-20151).
Note that the fact that an employee refuses to testify is likely to be sanctioned because this attitude characterizes a violation of the employee’s contractual obligation of loyalty towards his employer.
- It is also possible to talk to the alleged harasser at the end.
In fact, in principle, the employer is not obliged to inform the employee targeted by the investigation beforehand of the existence of the investigation (Cass. Soc 17 March 2021 n°18-25.597), nor to take his testimony. Nevertheless, this allows the analysis of the facts to be perfected, to give the employee an opportunity to express himself and to reinforce the probative value of the investigation report.
For each interview, the company can set up standard questionnaires in order to conduct the interviews in the most objective manner possible.
The internal investigation procedure in matters of moral harassment may be impacted in the future by the new provisions resulting from the WASERMAN law n° 2022-401 of March 21, 2022, which require companies that have internal regulations to update them by inserting provisions on the protection of whistleblowers and witnesses/victims of harassment.
It is strongly recommended that companies verify the compliance of their internal processes in order to reduce the risk of being held liable in case of litigation.
