Actance Tribune
What's NEW under French Employment Law?
N° 9 – October 10, 2022
How to react to a complaint of moral or sexual harassment?
Firstly, let us remember that the employer has a safety obligation. Thus, they must take all the necessary measures to prevent and put an end to acts of moral or sexual harassment. Failing to act effectively can render the employer liable as they can be accused of harassment, even when these acts are committed in the workplace by an employee, within the scope of their professional activities. However, they can prevent their liability specifically by taking all the immediate necessary measures to put an end to harassment.
In the silence of the law, judges consider that the employer to whom acts of moral harassment are reported shall act, under their legal safety obligations. As such, they shall specifically organise an internal investigation.
When?
An investigation should be launched as soon as possible in order to establish the factual reality of alleged harassment by collecting the testimonies of the people directly involved (alleged victim and perpetrator) and indirectly (for example: witnesses, line managers, occupational health professionals) and to conclude whether or not the facts constitute harassment.
The investigation report can be evidence in the event of any action before the Labour Court.
With whom?
- The employer chooses the people likely to be interviewed: they do not necessarily have to question all of the employees who are witnesses or are involved;
- For example: presumed victim, presumed perpetrator, employees from the professional environment (close or less close) of the complaining employee and they may seek assistance.
- Apart from exercising the right to alert, the employer has no obligation to involve staff representatives.
How?
The employer can carry out the investigation alone or entrust this to a specialist external firm.
It is recommended that the interviews systematically result in a written report signed by all those present.
The follow-up
The employer is not required to send the investigation report to the parties concerned (presumed victim and accused employee). This investigation report can be used as evidence against the employee, without the latter being able to claim it as unfair evidence.
Depending on the assessment of the facts by the employer, the employee accused of harassment may be exposed to disciplinary sanctions, regardless of their degree of seniority.
Note that employees who are victims of harassment cannot compel the employer to take such a measure vis-à-vis the perpetrator of the harassment, even by legal action.
Please remember that the internal company rules and regulations must mention the provisions of moral harassment provided for by the Labour Code.
This obligation contributes to the development of a prevention policy involving the Works Council, thus helping to strengthen the company’s CSR policy.
Naturally, Actance can assist you in defining a prevention policy protecting against all forms of harassment.
The Works Council as a tool for CSR (Corporate Social Responsibility – CSR)
CSR impact in the professional field is significant given that employees are stakeholders in the company and, as such, are therefore primarily concerned by the CSR policies of companies which specifically target working conditions, the fight against discrimination, the family life and professional life balance, the promotion of health and well-being at work, diversity and the mix within teams.
However, CSR remains above all a voluntary approach by companies and does not include any sanctions.
The Works Council is a key player in CSR given that it is responsible for promoting health and safety as well as improving working conditions within the company. It also plays a key role in the ecological transition. For example, the Works Council now has the task of “ensuring a collective expression of employees allowing their interests to be correctly and permanently taken into account in decisions relating to the management as well as the economic and financial development of the company including the organisation of work, vocational training and production techniques, particularly with regard to the environmental consequences of decisions”.
With regard to prerogatives in the areas of health, safety and working conditions, the Works Council analyses the occupational risks to which employees, in particular pregnant women, can be exposed, as well as the effects of potential occupational risk factors.
It can also encourage any initiative that they deem useful and, specifically, propose actions to prevent and combat moral and sexual harassment including sexist acts. The employer’s refusal must be justified.
The staff members of the Works Council and the adviser on matters of sexual harassment and sexist behaviour are trained as necessary for their missions in terms of health, safety and working conditions.
At their own initiative, the Works Council also formulates and examines, at the request of the employer, any proposal likely to improve the working conditions, employment and professional training of employees, life in the company as well as the conditions under which they can benefit from additional collective guarantees in terms of provident insurance and retirement.
The Works Council also carries out regular inspections concerning health, safety and working conditions (surveys, interviews, etc.).
Finally, the Works Council can, under certain conditions, call upon experts and, in certain circumstances, they have the right to alert.
See our newsletter on whistle-blower status by clicking here .
Renewal of employee representative bodies
Since January 1, 2020, the Works Council definitively replaced staff delegates (known in French as “DP”), the employee representative committee (“CE”) and the hygiene, safety and working conditions committee (“CHSCT”). Companies with at least 11 employees must have a Works Council unless a deficiency report is justified.
2022 signifies the end of an electoral cycle for a certain number of companies.
The latter must therefore renew the mandates of their elected representatives via the organisation of professional elections.
There are certain rules concerning the establishment of the Works Council and its operation can be determined within each company, through negotiation with the union delegates (failing that, the elected representatives of the Works Council). If there is no agreement, the decision is then taken, as the case may be, by the employer or by application of the supplementary rules of the Labour Code.
The employer is required to start the Works Council selection electoral process, in particular when the required threshold of 11 employees is reached or the mandates of the staff representatives end.
To do this, the employer shall inform the employees of the organisation of elections and invite the unions to negotiate the pre-election agreement protocol.
The employer must fulfil these two obligations, whether it is a first Works Council election or a renewal of mandates.
Here are the main steps of organising professional elections:
