Violence the current economic crisis is forcing companies to downsize. Two solutions for this: either dismiss or lead to the resignation of certain employees. Everyone knows that a dismissal is expensive, especially if caused by an economic motive. Get an employee resigns is seemingly less expensive. Bullying is however severely punished.
Since 2002, the facts of harassment are punished by both the Labour Code and the Penal Code. Article 1152-1 of the Labour Code provides for imprisonment in such cases a year and a fine of 3,750 €. Article 222-33-2 of the Penal Code uses the same term of imprisonment and the fine is € 15,000. Both the employer and its employees, the question arises: where does the bullying? Where is the red line not to cross?
The qualification of the crime of harassment, however, is rendered uncertain by the fact that it is mainly based on its consequences. On September 24, 2008, the Supreme Court said it intended to control this qualification now and then the unfettered discretion of trial judges.
no doubt that this year 2009, this type of litigation is more common and it is important to find a few landmarks.
Numerous facts can amount to harassment. This is particularly the allocation of tasks unrelated to the duties of the employee, placement in a confined space without tools or labor, harassment or unfair. The Court has even upheld against the employer that an employee to withdraw his mobile phone without cause.
Incrimination is very broad, as is the deterioration of working conditions may adversely affect the rights and dignity of the employee, impairing his health or jeopardize his professional future.
Moreover, the crime of harassment is part of formal violations: it is constituted even if the victim did not suffer actual prejudice. For example, because it has managed to preserve her physical or mental health notwithstanding the interference suffered. This refusal to protect those who have less successfully resisted the "war of nerves".
Considering that it is especially difficult for the employee to obtain evidence of his harassment, the legislature has set the common law rules of evidence. Thus, just as the employee establishes facts from which it presumed the existence of moral harassment. It is then for the employer to show that his actions did not constitute harassment and that his actions were justified by "objective factors unrelated to any harassment" (Art. 1154-1 - Labour Code).
The judges check However, the combination and repetition of facts to hold the qualification of harassment, the law intends not to be confused with a simple stressful situation in the company.
The manager retains some flexibility to energize his team. It must however be aware that personally liable in respect of his subordinates. It is therefore good to keep compromising the game of downsizing to please his own hierarchy or reach its profitability goals. It may also in case of disciplinary action, up to serious misconduct.
However, the employer is obliged to take all necessary measures to prevent acts of harassment and lack of fault on its part does not relieve him of responsibility.
In summary, the war of nerves is an inappropriate response to the management of redundancy in times of crisis. We must rejoice because the denial of bullying is also an affirmation of the superiority of human dignity on economic contingencies, in all circumstances, notwithstanding the crisis.
Michel PASOTTI - Lawyer at the Paris Bar - Doctor of Economics - Paris, April 20, 2009
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