French Employment Law Review (Nov 2016)

Date: Dec 2016

This issue covers the following topics:

Chambery court of appeals to refuse the whistleblowing protection in the Tefal case

  • Chambery court of appeals, November 16, 2016

When a love story turns into bullying

  • Versailles court of appeals, November 15, 2016

Employee’s insubordination does not necessarily result in his termination for serious misconduct

  • Supreme Court, November 10, 2016

Employee filing a criminal complaint with the police is not required to previously inform his employer

  • Supreme Court, November 2, 2016

Private health insurance scheme to benefit to employees on the company’s payroll at the time of their accident

  • Supreme Court, November 10 2016

Chambery court of appeals to refuse the whistleblowing protection in the Tefal case

On December 4, 2015, the criminal court of Annecy sentenced a former employee of the French company Tefal to a suspended fine for interfering with secrecy of the company’s electronic correspondence and fraudulent access to its automated data processing system. The employee was also convicted for misappropriation of the company’s emails that he sent to the labor inspector who was investigating the company. The labor inspector was herself sentenced to the same penalty based on concealment of information and breach of professional secrecy.

In support of its decision, the court ruled that the circumstances of the case showed the employee’s “bad faith” and the fact that he was “perfectly aware of acting in breach of the law, the IT charter of Seb Group and the internal rules of procedure of Tefal”. The case was therefore referred to the Chambery court of appeals. When arguing the case before the judges of the court of appeals, the employee did not dispute the fact that he had abusively entered the IT system of his employer to collect documentation and information supporting his allegations of wrongdoings against Tefal. However, he claimed that he was a whistleblower and should be protected as such.

This argumentation was not successful before the court of appeals. It is not really surprising given that the employee chose to base his defence on article 1132-3-3 of the labor code. Basically, this article provides that non one may be discriminated against for having reported or testified in good faith of facts constituting a misdemeanour or a crime.

Indeed, this legal basis did not provide the adequate protection for the employee. This transpires from the decision where the court pointed out that there was no clear evidence that Tefal’s actions revealed by the documents communicated to the labor inspector could be viewed as criminal offense. The employee’s penalty was thus confirmed by the court. Same for the labor inspector.

The employee could not take advantage of the recent Whistleblowing Act (Loi Sapin 2) as its provisions were not in force at that time. That said, he could have taken advantage of the right to freedom of expression in the workplace, which is a legal ground commonly used by the French Supreme Court to protect whistleblowers.

This principle enshrined in article 10§1 of the Convention for the Protection as well as in the French Constitution.

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