By Philippe Thomas, Partner and Head of Employment practice in the Paris office of Dechert LLP

While bullying is the term used in the Anglo-Saxon countries of Europe, in the majority of European Member States, especially the Northern ones, bullying is referred to as “mobbing.” Other countries have adopted their own terms. For example, in France, bullying is referred to as “moral harassment.” Regardless of the term used, many European countries, including France, have implemented laws prohibiting bullying in the workplace. By Philippe Thomas, Partner and Head of Employment practice in the Paris office of Dechert LLP.

As early as 1989, the European Union instructed that employers should maintain “safe working conditions” for all of their employees. This directive provided that employers must “ensure safety and health of workers in every aspect related to work,” but did not explicitly address workplace bullying. On December 31, 1991 France enacted a law which went beyond the directive as it decided that this duty of taking care of the safety of its employees would require a general obligation of prevention on the part of the employers. However, at that time, bullying was still not recognized as such. Anti-bullying legislation appeared for the first time in Europe in 1993 in a law passed in Sweden. Following the Swedish experience many European countries implemented their own laws prohibiting workplace bullying. France, however, did not turn its attention to workplace bullying until the publication of a 1998 book, Le harcèlment moral, la violence perverse au quotidien by Marie-France Hirigoyen, which caused the French media to focus on workplace bullying.

On January 17, 2002, France enacted a Social Modernization law that authorizes both criminal and civil liability for “moral harassment” (a.k.a. bullying or mobbing) in its Penal and Labor Code. The Labor Code prohibits “moral harassment” defined as “repeated acts leading to a deterioration of the working conditions and that are likely to harm the dignity, the physical or psychological heath of the victim or his professional career.” The Labor Code provides for sanctions including one year imprisonment and a fine. A peculiarity of French law is that criminal law also prohibits bullying. It does so under the same terms as the Labor Code but imposes a criminal sanction which is that the perpetrator can be sentenced to up to two years of imprisonment and a fine of 30,000 € (article 222-33-2 of the French Criminal Code).

Identifying Bullying
The French Labor Code defines bullying broadly and by reference to a number of separate elements. Over time, some of these elements have been interpreted by the French Supreme Court.

Repeated acts
There must be multiple acts. A single act cannot constitute bullying. “Aiming or resulting in a deterioration”. This legal definition does not specify whether an intention to harm on the part of the employer is a prerequisite for the recognition of a claim. However, on November 10, 2009, a landmark case was handed down by the Supreme Court which has significantly opened the way for future claims for bullying in France. Indeed, this ruling has resulted in a considerably broader definition of bullying in the workplace: The French Supreme Court held that bullying could occur without an intent to harm on the part of the perpetrator. Therefore, bullying may be intentional or unintentional.

“Working conditions”
Working conditions are interpreted as a combination of the “working atmosphere” and the general attitude of the employer with regard to the employee. “That are likely to harm the rights, the dignity, the physical or psychological health of the victim or his professional career”. In most cases, the deterioration of the physical or psychological health of the employee will have actually occurred. However, there can be bullying where the deterioration is merely “likely” to affect the health of an employee, even though such deterioration has not in fact occurred.

The French Supreme Court has also recognized that a wide range of acts can constitute bullying, including but not limited to: (1) when management uses repeated methods that lead to a particular employee being the target of repeated actions with the purpose or effect of producing a “deterioration in his working conditions likely to violate his rights and dignity, impair his physical or mental health, or jeopardize his future career”; (2) being repeatedly subjected to denigrating and humiliating statements; and/or (3) a victim being subjected to the demeaning attitude of the employer and ostracism during several days, preventing the employee from performing his duties.

Identifying the Bullier
Under French law, the bullying subject need not be a direct supervisor, but can be a manager directing moral harassment to a subordinate, a subordinate directing moral harassment at a manager or supervisor, or any employee subject to bullying from a third party who has been given supervision over the employee. In a 2012 case, the Supreme Court held that moral harassment did not require establishing a downward hierarchical relationship where the supervisor bullied someone under his or her supervision. In this case, an employee referred to his manager as a complete idiot and had, on several occasions, showed his contempt for the manager through various signs of insubordination. Matters deteriorated and the manager committed suicide. The employee was dismissed for gross misconduct. When subject to a moral harassment claim, the employee argued that he or she could not have committed moral harassment against someone who was of higher rank than him. The Supreme Court rejected this argument.

The Employer’s Obligations in a Prevention Based System
Because bullying in the workplace is a health and safety issue under French law, prevention of bullying in the workplace represents a large part of the employer’s obligations. Article L.1152-4 of the French Labor Code provides that employers must take “all necessary measures to prevent bullying in the workplace.” Employers’ formal obligations include: (1) establishing internal policies prohibiting bullying in the workplace; and (2) displaying in the workplace a copy of article 222-33-2 of the Criminal Code concerning the criminal offense of bullying, with the criminal sanctions attached thereto.

The Role of Staff Delegates
Staff delegates are obligated to act as bully whistleblowers if they observe, or are informed by an employee that there has been a violation of personal rights, physical or mental health, or individual freedoms in the company that is not justified by the type of work to be done, nor proportional to the intended objective. Once a staff delegates receives such information the employer must organize an investigation without any further delay and take all necessary measures to remedy to the situation. If the employer fails to organize an investigation or does not agree with the qualification to be given to the facts reported to him, the employee or the staff delegate (if the employee does not oppose such action) must refer the case to the Employment tribunal (article L.2313-2 of the French Labor Code).

Mediation
To put an end to bullying cases at the workplace, French law provides for a mediation procedure that can be initiated by any person who feels they have been a victim of bullying at the workplace or by the person accused of bullying (article L. 1152-6 of the French Labor Code). The mediator is chosen by agreement between the parties. The mediator attempts to settle their differences and submits written proposals to put an end to the bullying acts. Should the mediation fail, the mediator must inform the parties of their legal rights.

Employer’s Liability for Bullying
Under recent case law, the French Supreme Court held that an employer’s obligation includes preventing bullying; thus rendering employers liable for the bullying conduct of their employees. This liability is not diminished by the implementation of preventative measures. A French employer may also face civil liability for workplace bullying under French contract law. Under French civil law, all contracts must be performed in good faith and this requirement equally applies to employment contracts. Accordingly, if an employee suffers an adverse employment action related to bullying behavior, that employee may bring a contract claim for wrongful termination. Additionally, if an employee resigns because he was subject to workplace bullying, the employee may argue his resignation amounts to unfair termination on the part of the employer and be awarded compensation.

Damage Awards
In a 2012 decision, the French Supreme Court decided that an employee can claim damages on two fronts when he is the victim of bullying : (1) for breach by the employer of his obligation to take measures to prevent bullying in the workplace; and (2) for the acts of bullying themselves. In the 2012 decision, the court awarded a bully-victim employee 5,000 € on the first ground and 25,000 € on the second ground. In the case at hand, the victim suffered from a deleterious climate in a department and intimidations to an extent which led her to go on a sick leave and ultimately be recognized as unfit for work on a permanent basis. If the bully-victim’s employment contract is also terminated as a result of or related to the bullying conduct, the employer may be liable for unfair termination. Damages for unfair termination are often a multiplier of the monthly salary of the employee, which can easily reach twenty-four months of salary continuation. French courts may also award non-pecuniary damages in bullying cases. For example, the court may order the employer to display a unfavorable decision about bullying in the workplace as well as in newspapers (article L.1155-2 of the French labor Code).

No Retaliation in Case of Whistleblowing or Legal Proceedings
In order to protect the employees and to promote the reporting of bullying, the French Labor Code provides that employees who suffer, refuse to undergo, or report bullying cannot be sanctioned, terminated or discriminated against (art. L. 1152-2 and L. 1152-3 of the French Labor Code). The prohibition of bullying entails all disciplinary measures, including termination of the employment contract, is null and void.