Best score for the Court of appeal of Angers

In the vote of the Act on moral harassment, in January 2002, we had the impression that the Court of cassation was rather reserved to this new concept. This feeling was confirmed when, two years later, the High Court took advantage of one of the first cases submitted to entrust to the so-called "judges from the bottom" (labor, courts of appeal) the care to assess whether or not the facts before the Court were acts of harassment (Cass. Soc.,. 27 oct 2004).

She confesses itself in the press release accompanying three judgments of September 24, 2008, is the rise of suffering to work situations and sometimes extremely serious consequences that did change his mind and decided to "strengthen the nature of its control, to harmonize the practices of the various courts of appeal and to clarify the rules that drive the burden of proof".

According to the law (article l. 1152-1 of the Labour Code), the employee establishes facts suggest acts of harassment and the employer must demonstrate that they are foreign to any harassment. But law forgot to define the role of essential, j., and it is this gap that today fills the Court of cassation.

Once the employee has established the materiality of the facts, how should respond the judge It must "understand these facts as a whole and consider whether they can assume the existence of harassment". If Yes, it is only at this time that the defendant, the employer, enters the scene to try to give an objective explanation.

Understand the facts

The most significant case is between a clinical midwife. It began by presenting facts: framework status has been withdrawn, his salary is stagnating, certain premiums have been removed and working conditions have deteriorated. And then she wanted to show that these facts had severely impaired his health and that she was in an anxio-depressive state which was the result. She even added that this malaise was collective and affect all midwifery clinic.

However the Court of appeal of Toulouse in held in the second part of the demonstration and, noting that the medicine of work had not been alerted, rejected a block the request of the employee. It is therefore not, as recommended by the Court of cassation, apprehended the facts as a whole. It should consider all the facts made by the Contracting Party and decide whether or not, they had assumed a position of moral harassment (No. 06 - 45 579).

Similarly, the dispute between the RATP and one of its trainee officers. It complained of have been harassed and brings as the exchange of mail and medical certificates. The Court of appeal of Paris, noting that doctors are repeated according to the employee, believes that harassment is not established. Here again, judges is in held in some of the facts made by the employee instead of considering them as a whole. The case is broken (No. 06 - 45 747).

Best score for the Court of appeal of Angers. Selca is on trial with a technician of laboratory also delegated personnel, who complains of harassment and trade union discrimination. That has happened The company had to begin economic dismissal proceedings. The employer, in his research of reclassification, sought to reorganize the therapeutic half of the employee, despite the contrary opinion of the occupational physician. Then it proposed him to assign it to unpacking of samples and packaging of boxes, all work which, according to her, were housekeeper of the laboratory. Last asset in his sleeve, the authorization of the fire was refused by the administration, the economic ground appearing real or serious to the labour inspector.

This last argument is inoperative. What matters to the Court of cassation, is that all the facts alleged were their explanation in the proposed economic dismissal. Achieving therapeutic part-time, reclassifying attempts, were not a commitment to lowering of the employee but conducting economic dismissal (No. 06 - 43 504) Act.