Paul van Deth is a lawyer specializing in employment law at the Vaughan law firm in Paris. While several cases of moral harassment are in the news, he defines the contours of this legal notion.
franceinfo: how do you distinguish between moral harassment and the exercise of authority?
Paul van Deth: it is not easy, because moral harassment is a protean legal concept. The Labor Code tells us that harassment is repeated acts having as its object or effect the deterioration of working conditions or the deterioration of health and this assessment is made on a case-by-case basis, therefore an abuse of authority is not necessarily bullying, but it can be under certain circumstances.
Is moral harassment necessarily the fault of the employer or can it come from other people or from a mode of organization?
The author can be a manager, can be a colleague, can even be a subordinate, a client since he has a de facto authority and it can result from a managerial mode, which comes from a method that set up the company with a desire to put employees in difficulty or to see them resign. We have seen this in a resounding case which was the subject of a criminal conviction, which is the Orange case.
Do the facts need to be repeated? How often and for what duration?
This can be done in an extremely short time once the facts are repeated. The frequency does not matter. The judges will look at the circumstances and see if there is a deterioration in working conditions so that the employer’s safety obligation can be engaged or even more serious moral harassment.
How do you prove that you are a victim of moral harassment?
The employee does not have to prove the reality of moral harassment in any case before an industrial tribunal. It must provide factual elements suggesting the existence of moral harassment. The proof is arranged, we make things easier for him. It must provide serious elements suggesting the existence of harassment, but it does not necessarily have to demonstrate it.
Does this necessarily lead to damages?
The question of damages is not the most important. The damages do not relate to considerable sums, but what is considerable are the consequences of the conviction. When you are harassed and you get the conviction of your employer, it is often in the context of a breach of an employment contract and there that can engage much more important compensation consequences than the only condemnation of moral harassment.
How are judges evolving in relation to these ever more frequent cases?
We have a case law that has been built for years, which leads judges not to be Manicheans. They look at the factual elements and there are very many cases where the employee considers that he is being harassed and where the judge does not follow him.