An employee complained to her employer about inappropriate gestures made towards her by one of her colleagues at work. The employer immediately launched an internal investigation in accordance with its legal obligations regarding sexual harassment.
A week after the complaint, the employee was summoned to a preliminary interview and then dismissed with immediate effect.
The latter then brought an action before the Labour Court to have his dismissal declared unfair and to obtain compensation for the material and non-material damage caused to him by the termination of his employment contract.
At first instance, the court ruled that the dismissal was unfair, even though it considered that the employer "could have resorted to 'less radical measures' and tried to persuade the [employee] to change his behaviour before taking a more severe measure, especially as he had 15 years' seniority and had 'never been the subject of a negative remark'". In the end, the court found that, although his behaviour had been established "to a certain extent", it was not such as to "make it immediately and definitively impossible to maintain an employment relationship".
The employer appealed this decision, seeking a declaration that the dismissal with immediate effect was justified. The employer considered that the employee's inappropriate behaviour had extended over several years and towards several people, and that he had acknowledged this in part, and that the sexual harassment complained of would in itself constitute serious misconduct.
The judgment handed down by the Court of Appeal on 8 June 2023 provides an update on the definition of sexual harassment and the seriousness of such a complaint.
Employers are obliged to put an immediate stop to any harassment of which they are aware by taking appropriate measures against the perpetrator. While the choice of sanction to put an end to the harassment rests with the employer, in the event of dismissal with immediate effect, the Labour Court will consider whether the harassment constitutes a serious reason that makes it immediately and definitively impossible to maintain employment relations.
In assessing misconduct, the judge will also take into account the employee's level of education, work history, social situation and any other factors that may influence the employee's liability.
In the judgment under review, the Court of Appeal found that the facts of which the employee was accused were not sufficiently established by the employer, which did not provide direct testimony (i.e. from people who witnessed the events) or any other evidence.
It should be noted that the judges in this case held that the fact that the employee kissed his colleague in a lift, without specifying the circumstances in which the kiss was given and in particular whether a particular event could 'justify' it (!), was not sufficient to characterise an act of sexual harassment that could be punished by dismissal with immediate effect.
In addition, the judgment mentions that two other "victims" of inappropriate gestures by the employee had, in the past, "considered it appropriate to put [the employee] in his place themselves, without taking any action", and that such gestures had "only occurred once", so that the employee's inappropriate behaviour could not, in the Court's view, be considered serious enough to justify dismissal with immediate effect.
The Court of Appeal's reasoning raises a number of questions:
- Would the fact that an employee "defended" himself against an act of sexual harassment mitigate the seriousness of the misconduct committed and the liability of the perpetrator?
- Would the fact that each of the employees had only been subjected to an inappropriate gesture "once" also mitigate the misconduct committed, even though the legal definition of sexual harassment does not require any repetition of the behaviour in question?
- Could an employee who is the victim of sexual harassment be accused of not having reacted to such behaviour, thereby imposing a new obligation on the victim, even though it is sufficient for the victim to have felt hurt by the behaviour for it to be reprehensible (see the Court of Appeal ruling of 29 June 2006, no. 30051)?
Following the reasoning of the judges in this judgment, inappropriate behaviour by an employee at work could be classified as sexual harassment, justifying dismissal with immediate effect, if it could be established that :
- the inappropriate gestures occurred more than once (whereas a single act may be sufficient to be qualified as such, depending on the seriousness of the act, unlike moral harassment, see in this regard the judgment of the Tribunal du travail de et à Luxembourg of 29 May 2017, no. 2114/17);
- the complainant reacted to these actions;
- - the author of the complaint has taken action without "delay" with his hierarchy, his trade union organisation or the competent state authorities, unless he can prove that by doing so he would have exposed himself to a threat ; and that
- the facts, even if not contested or contradicted, are backed up by direct testimony and/or any other piece of evidence.
This reasoning is somewhat open to criticism insofar as the employee alleged to have committed the acts in question has not denied having kissed the complainant in the lift, and the complainant is "criticised" for not having complained to a hierarchical authority earlier about her colleague's behaviour, and for not having raised the matter during an annual appraisal interview.
Nonetheless, the Court of Appeal held that this last act, which preceded the complaint, was such as to justify a "strong reaction" on the part of the employee who had complained, as well as on the part of the employer, to ensure that such acts did not recur. However, the dismissal with immediate effect in question was not deemed appropriate in view of the behaviour complained of.
The judges also ruled that no serious misconduct had occurred, since the employee had been with the company for fifteen years and had never previously been subject to any disciplinary measures.
As a result, the internal investigation carried out by the employer in response to a complaint is fundamental, both to fulfilling its legal obligations and to justifying the choice of sanction taken to put an end to the sexual harassment.
The employer should therefore initiate an internal investigation so that the employee can be heard :
- the employee who has complained of inappropriate behavior, so as to obtain sufficient details of the facts complained of ;
- employees likely to be able to establish the reality of the facts reported, and/or who may have been subjected to inappropriate behaviour with sexual connotations by the same employee; and
- the alleged perpetrator, in order to gather his or her observations on the complaint and all the testimonies.
In principle, the conclusions of the investigation will determine whether or not the facts complained of have been proven, and consequently it will only be at the end of this investigation that any measures and/or sanctions to be taken can be usefully determined.
In the light of this decision, an act of sexual harassment, even if not contested by the perpetrator, would not ipso facto constitute serious misconduct justifying dismissal with immediate effect, as the behavior in question must be analyzed in the light of the specific circumstances of the case.
Nonetheless, it is essential that employers do not allow such behaviour to go unpunished, as they are themselves responsible for their passivity in the face of sexual harassment by employees, customers or suppliers.
by Alessia Bordon