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French Supreme Court, Labour Chamber, 17 February 2021, 19-18.149

16 mars 2021

In a decision dated February 17, 2021, the Labour Chamber of the French Supreme Court again held that the employer is under the obligation to effectively address any situation of sexual harassment. Failing that, the employer is bound to be held in breach of their security duty.

According to this decision, the employer is in breach of their security duty where:

  • They issue a simple warning against the employee who was found guilty of sexual harassment by a criminal court;

  • They offer to the employee who is the victim of harassment to change service so that she no longer has to deal with her bully.

According to the French Supreme Court, such measures were insufficient. The Court thus endorsed the judicial termination of the employment contract at the employer’s expense.

It must be reminded that the employer is under an obligation to take all necessary measures to prevent, stop and punish sexual harassment (article L. 1153-5 of the French Labour Code). No alert or report should be played down or ignored. If an initial analysis does not rule out a suspicion of harassment, an internal investigation should be immediately initiated. If necessary, the employer must remove the victim from the alleged perpetrator during the investigation. If sexual harassment is then confirmed, the employer must discipline the guilty employee (for instance dismissal for serious misconduct).