In the matter at hand, two employees had an on-and-off personal relationship for months, with successive break-ups and reciprocal approaches for reconciliation. The female employee informed management of the relationship and complained about the behaviour of the male employee, who used to be her superior.
The employer terminated the male employee for serious misconduct based on the fact that, regardless of any private relationship he had with the female employee, he kept making personal advances, despite her repeated requests for him to stop. The employer further held that the employee kept sending her personal messages on her professional email address and even went on to put a GPS tracker on her car, while she was working, to check whether she was having a personal relationship with another employee. He also allegedly sent anonymous letters to the female employee’s companion and mother, mentioning the affair and details about her personal schedule.
The Court confirmed the lower Court’s ruling that the termination was not justified because it was based on the employee’s private life. The lower Court also found that there was no sexual harassment.
In France, judges maintain a very strict boundary between the employee’s professional life and his or her private life. Based on that rule, it is very difficult, for instance, to forbid employees from having personal relationship amongst colleagues, or with subordinates, or to force them to disclose these relationships.
Likewise, an employee cannot be terminated because of a private life event or incident. For instance, an employer cannot terminate an employee because s/he was indicted for a criminal offence that is not related to work (illegally keeping weapons, for example).
To be able to terminate an employee, exceptionally, based on a private life event, the employer must demonstrate that this private event creates a clear, objective disturbance for the business.
That would typically be the case for an indecent assault on an under-aged person if the employee’s job involved working with kids. It would also be the case for an employee who was taken into custody and sentenced for violence committed against his girlfriend in an apartment rented to him by his employer, a social-housing organisation. On the other hand, the termination of a white-collar employee in a bank based on the mere fact that he wrote cheques that bounced or had a lot of debts would be considered unfair dismissal. Likewise, the termination of a male employee who was criminally convicted of sexual harassment on female colleagues has been judged unfair because the harassment did not take place in the workplace.
In the case at hand, the Court ruled that the GPS tracker had been placed on a personal vehicle, not a professional one, and that the male employee only sent the female employee two messages through professional software. Therefore, the Court found that, contrary to the employer’s allegations, these events were of a personal nature.
Consequently, the Court checked whether these private events constituted objective disorder for the business. It found that these private events had no impact on the female employee, the business or the career of the person concerned, which is why the termination was considered unjustified.
This case highlights the fact that determining the boundary between what is private and what is professional can be quite difficult in practice. While the facts have been ruled by the Court to be of a private nature, there was obviously a connection between the facts and the protagonists’ professional life.
The employer had probably anticipated this legal issue. To try and mitigate the risk of the termination being judged unfair, it insisted on the connection between the employee’s alleged wrongdoings and work, by emphasising the use of professional software for personal messaging. Moreover, the termination letter mentioned that although the GPS tracker was placed on the female employee’s personal car, it was placed while she was working and while the car was in the workplace’s surroundings. Yet this was not enough for the Court to rule the behaviour was directly work-related.
The result would probably have been different if the employee had repeatedly used the company’s software for personal and inappropriate messaging, or if, instead of allegedly sending letters to the female employee’s family, he had disparaged her with co-workers, or in the workplace. Likewise, in the case at hand, the male employee did not use his hierarchical position to harm the employee.
As always in this type of case, caution is advised. Firstly, as a general rule, in cases related to inappropriate behaviour in the workplace, it will be key to demonstrate that the employer took all appropriate steps to ensure all employees, and particularly female employees, were working in a safe environment. These steps must absolutely be taken prior to an incident. This would typically include, among other things, providing training to employees, appointing someone to be responsible for these issues within the Works Council and providing a process to report this type of wrongdoing.
Secondly, when an incident happens and if the employer decides to terminate the employee, it should always make sure that it establishes a clear connection between the alleged wrongdoing and work. When this is not possible, a clear objective disturbance to the workplace must be alleged as early as in the termination letter and demonstrated. Evidence of that will be key.