In a recent case Cass. Soc. Sté Cegedim v. S, the French Labour Supreme Court upheld the decision of the Court of Appeal that an employee’s dismissal was void, on the ground that his freedom of expression had been violated.

The employee had criticised the company’s management in an email sent to all his colleagues and to union delegates regarding a proposed harmonisation of personnel in the context of a merger. His email contained strong language accusing the Sté Cegedim management of using “blackmail”, as in a “dictatorship”, of holding the “knife to the throat” of the employees and of “sneaky actions”, etc.  He also compared the Company’s Head of HR to a “kitchen salesman”, trying to “sell his stuff”.

The employee was immediately dismissed for gross misconduct (“faute grave“) on the ground that his email was injurious, thus constituting an abuse of his freedom of expression.

An abuse of that freedom, i.e. when the expression used is injurious, defamatory or excessive, can justify a disciplinary sanction or even dismissal under French law. However, at the same time employees can criticise their employer if they do it in a reasonable way and do not denigrate their employer in an immoderate or spiteful manner.

So why did the Supreme Court decide here that there was no abuse, even though expressions used were injurious and clearly excessive?

The Court explained that to assess whether employees are abusing their freedom of expression you must take into account the following factors: the context in which the employee expressed himself, the publicity given to his words and the people to whom his emails were sent.

On this basis it considered on balance that there was no abuse in the present case because the words in question were sent only to employees and union representatives of the company (and not third parties) and they were in relation to the negotiation of a collective agreement with the aim of defending employees’ rights that might be jeopardised by the company’s proposals, at least in his perception. One interpretation of this would also note that most of the comments were addressed at the inanimate company as a whole rather than at any individual.  For the Head of HR, being likened to a kitchen salesman is hardly flattering but most Heads of HR will have heard worse (we once had a client in the UK whose HR Manager was known internally as “The Angel of Death”, a nickname of which she eventually became quite proud).  More particularly, the words did not represent an attack on his integrity or professional competence so much as on his style.  Although the union negotiation context provides some protection, therefore, it does not give the employee carte blanche to say whatever he wants.

By comparison, in another case from the month before, the Supreme Court recognised that an employee had abused his freedom of expression when he wrote to the HR Director, copying her supervisor, to criticise the variable remuneration system in place, accusing it of being “a system for cheaters”, “a system for thieves” and a deliberate attempt to breach labour law, and that the company “merits better than these dubious practices”. Those phrases did amount to allegations of dishonesty and (since here was no actual evidence to support that) therefore crossed the line from legitimately expressed opinion to overt abuse.

We can regret however that in the Sté Cegedim case the Supreme Court did not consider that there was an abuse based solely on the tone used by the employee and the fact the words he used were clearly excessive. There must be a point where the maintenance of a civil and professional workplace should prevent gratuitously offensive language and it is hard to believe that the words here would fall on the right side of that line.  The employee could obviously have made his point without descending to that level.  We can also only imagine the union official’s response if the HR Head had said those same things to him.  A claim for moral harassment would seem almost inevitable.