Any employer having to deal with an employee making derogatory or even inappropriate comments should be wary before considering a dismissal. The employee may be protected as a whistleblower or simply on the grounds of freedom of expression. If this is the case, the dismissal can be annulled, and the employee can demand to be reinstated within the company. However, an employee cannot say everything with impunity. The French Supreme Court (‘Court de Cassation’) recently handed down an interesting decision on this subject, published in the bulletin (Cass. soc., 1er June 2023, 22-11310).
In this case, the employee was both an employee and a partner in the company in which he held 15% of the shares. Clearly no longer getting on with his employer, the question of buying back his shares arose. The employee then offered to sell them at a high price and to terminate his employment contract by means of a mutual termination agreement, in exchange for which he undertook not to report an alert. The employer did not accept. The employee then sent an e-mail to the company chairman expressing his disagreement regarding the implementation of a loyalty card indicating that “the legality or regularity of the procedure seemed doubtful to him”. The employer did not appreciate the criticism and then dismissed the employee for serious misconduct, accusing him of “monetising the sale of his shares at an exorbitant price in return for not reporting an alert” and describing the denunciation as “blackmail” or even “a ploy designed to get out of the company quickly with a financial advantage”.
The Court of Appeal hearing the case declared the dismissal null and void on the grounds that the letter of termination “referred, in its entirety, to the denunciation of facts that could be classified as criminal”. The appeal judges adopted the position of the whistleblower, pointing out that “the good faith of an employee who reports an offence is presumed” and ruling that in this case the employer had not provided “any evidence to rebut this presumption”.
However, the appeal decision was overturned. The High court first reminded the provisions relating to whistleblowers applicable to the dispute (art. L1132-3-3 c. trav.) – according to which “no employee may be sanctioned or dismissed (…) for having reported or testified, in good faith, to facts constituting a misdemeanour or a crime of which he or she may have become aware in the performance of his or her duties “. The High Court then noted that the grievance set out in a letter of termination “based on the employee’s reporting of facts which, if established, would be of such a nature as to characterise a crime or a misdemeanour (…) shall in itself render the dismissal null and void” (art. L1132-4 of the Labour Code). However, the High Court criticised the Court of Appeal, for not having characterised “that the employee had, in the disputed email, related or testified to facts likely to constitute an offence or a crime and that the employer could not legitimately be unaware that, through this message, the employee was denouncing such facts”. In fact, the Court of Appeal had only referred to facts that “could” be classified as criminal.
It is therefore not enough for the employee to report some facts; the court must (i) identify the possible criminal offence concerned and, if it constitutes a misdemeanour or a felony (minor offences are not concerned), (ii) establish that the employer could not legitimately be unaware that the employee was referring to such offence.
Here, the employee had simply indicated that the legality or regularity of the procedure relating to the loyalty card offer “seemed doubtful to him”. That was a bit short. Was this a criminal offence? Nothing obvious. Absent any characterisation by the Court of Appeal, its ruling was overturned, leaving it to the referring court to proceed to a proper analysis and motivation.