- Applicable rule
In France, employees enjoy freedom of expression both inside and outside the workplace.
This right is protected by the French Labor Code. The only limit concerns abuse of freedom of expression (such as insults or defamation).
Dismissal based (even partially) on non-abusive freedom of expression is void (“licenciement nul”).
- Context
An employer offered his employee a mutual termination agreement (“rupture conventionnelle”) in April 2019.
The employee refused the offer in a letter, through her lawyer. The latter denounced, the conditions under which the meetings for mutual termination were held, in the refusal letter.
Shortly afterwards, the employee was dismissed for poor performance in May 2019.
- Procedure
The employee challenged her dismissal before the Employment Tribunal, arguing that she had been dismissed because of the letter sent by her lawyer, thereby violating her freedom of expression.
The Court of Appeal agreed and ordered the Company to pay the employee damages for void dismissal. It held that the employee had been dismissed because of her lawyer’s letter, thus violating her freedom of expression.
- The French Supreme Court’s decision
The key question that the Supreme Court had to answer was as follows: can a letter drafted by a lawyer on behalf of an employee be considered a personal expression of the employee and thus fall within the scope of the employee’s freedom of expression?
The French Supreme Court disagreed with the Court of Appeal and ruled that:
A letter drafted by a lawyer on behalf of an employee to reject a mutual termination offer does not constitute the employee’s exercise of freedom of expression.
As the dismissal letter referred only to the employee’s poor performance and not to the lawyer’s letter, the employee could not rely on freedom of expression to challenge the dismissal.