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The executive had been granted various delegations of authority, including the authority to chair staff representative bodies. The employee held union and staff representation mandates. These positions were crucial to the outcome of the case.  

The disciplinary immunity for private activity is broad…

In general, an employee has the right — even during working hours and at the workplace — to respect for the privacy of his or her private life. Therefore, a reason based on the employee’s personal life cannot generally justify disciplinary dismissal. 

This is the case, for example, when the employee makes racist or xenophobic remarks in private conversations, even via the employer’s communication platform. So long as these conversations were not intended to become public and had no impact on the author’s relationships with customers or colleagues, the courts have ruled they cannot be the basis for disciplinary action.  

One might therefore assume that a romantic relationship between employees, which is by nature private and intimate, would be treated in the same way and would not give rise to disciplinary action. That would be somewhat hasty! 

…but it is not total

The disciplinary immunity for actions taken in private life is subject to two exceptions which have the effect of restoring the employer’s disciplinary power: 

  • When the actions relate to the employee’s professional life. Disciplinary action can be taken for private conduct when it is possible to identify, through the facts, objective elements of ‘inclusion’ in the professional sphere. This exception has been applied, for example, to an employee who uses a company vehicle to commit theft to the detriment of a third party during the weekend. It has similarly been applied to an employee who engaged in threats, insults and aggressive behaviour during a leisure stay sponsored by the employer outside of work time and place, but in which other employees and superiors also participated. 
  • When the actions amount to a breach of contractual obligations. The obligation of loyalty is the contractual obligation most often put forward by employers. It is mainly on this basis that the recent judgment was rendered. 

How to characterise breach of the obligation of loyalty?

In ruling that the executive breached the duty of loyalty, the Court of Cassation relied first on the factual elementsfound by the lower court regarding the executive’s broad powers and the broad scope of his responsibilities. The court noted that the executive exercised management functions, and in particular he was responsible for human resources management. In that capacity, he had been given various responsibilities in matters of hygiene, safety and work organisation, as well as permanently chairing the various staff representative bodies. 

The court also noted the particularities of the status of the employee who was the romantic partner. In exercising union and staff representation mandates, she had been involved in strike movements and occupation of one of the company’s establishments. She had also participated in various meetings concerning a workforce reduction project, in which her partner represented the company, while subjects described as sensitive were discussed. 

The court held that these specific elements, linked to the exercise of the representation of the employer for one of the partners of the couple, and to the representation of the staff for the other, meant that the concealment of the intimate relationship amounted to a breach of the obligation of loyalty. The dismissal for this reason was legitimate, even if the company had not suffered any actual harm as a result of the situation.  

In any case, the court emphasised that it is primarily the secret kept around the romantic relationship which constituted the breach. However, while the primary reason for the judgment was the breach of the obligation of loyalty, the court also stated that the intimate relationship was itself related to professional duties and likely to affect the proper exercise of those duties. Therefore, even if the relationship had been brought to the attention of the employer, the employer would probably still have had the right to bring disciplinary action. 

Takeaway for Employers

Romance in the workplace is always a risky bet. This is especially so where the partners in the relationship have significant managerial or employee representation duties. 

 

Discover more about employment contracts on our Global HR Law Guide