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Contaminating reason: reference to the fundamental freedoms of the employee nullifies the dismissal


fundamental freedoms of the employee

Reminder of the main fundamental freedoms enjoyed by the employee: freedom of expression, freedom to take legal action, freedom to testify, freedom related to respect for private life


Any attack on the exercise of a fundamental freedom is sanctioned by the nullity of the dismissal; But even more, it is enough for only one of the reasons set out in the letter of dismissal to be based on the exercise of a fundamental freedom - or even to refer to such a freedom - for the nullity of the dismissal to be incurred, regardless of whether the other reasons set out in the letter are established. This is the notion of “contaminating ground”.


• Freedom of expression :

In its decision of June 29, 2022, which related to an employee's freedom of expression, the Court of Cassation ruled in principle:

“The illicit nature of the reason for the dismissal pronounced, even in part, due to the exercise by the employee of his freedom of expression, a fundamental freedom, alone entails the nullity of the dismissal. »

The other "contaminated" reasons are therefore not part of the debate in an attempt to establish the reality and seriousness of the reason for the dismissal.

They may nevertheless have an interest, that of being taken into account in the assessment of damages. Indeed, it will be recalled that article 1235-2-1 of the labor code (applicable since September 24, 2017), provides that:

"In the event of multiple grounds for dismissal, if one of the grievances with which the employee is accused infringes a fundamental freedom, the nullity incurred from the termination does not exempt the judge from examining all of the grievances set out, to take into account account, where applicable, in the assessment it makes of the compensation to be awarded to the employee, without prejudice to the provisions of Article L. 1235-3-1. »


The judgment of June 29, 2022 also recalls that the only limit to freedom of expression is abuse, which is characterized by defamation, insult or the excessive nature of the comments made by the employee. If the notion of defamation and that of insult meet legal definitions, the excessive character does not meet a strict definition and everything is a matter of context.

In the case cited, it was an engineer assistant to the technical director who had been dismissed in particular for having made very serious accusations of corruption and concerning the security of the site, by openly questioning his hierarchical superior and the group. Two findings of the Court of Appeal were taken up by the Court of Cassation: there was no abuse in his remarks and the employee had already alerted his superiors to the points mentioned, three weeks before writing to the Chairman of the Management Board. Would the decision have been different if the employee had not alerted his hierarchy a few days before? Nothing is less sure.

It is therefore necessary to be very vigilant on the drafting of the letter of dismissal by favoring to support the reasons which do not fear the censorship of the nullity. Cass soc 29-06-2022 n° 20-16060


• Litigation:

As proof, in another judgment rendered on September 28, 2022, the fundamental freedom to take legal action is in question:

On the occasion of a legal action brought by an employee against his employer, the latter notes that the employee (still in place within the company) had produced in his complaint pay slips of other employees, of which he had knowledge in a fraudulent and unfair manner according to the employer who dismissed the employee on the spot, for serious misconduct.


The Court of Cassation overturned the judgment of the Court of Appeal "which was to conclude that the only reference in the letter of termination to the litigation proceedings initiated by the employee against his employer constituted an attack on the fundamental freedom of sue. » Cass soc 28-09-2022 n° 21-11101

The breakup letter can thus become the beginning of a long story if it is not precisely formulated.

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