Guidelines on internal investigation about moral and sexual harasment
Jacques Perotto and Anne-Sophie Houbart
Facing facts possibly qualifying as moral or sexual harassment, the employer is required to react, under the risk of failing its obligation to prevent occupational risks.
When such a situation is identified, an internal investigation, which unveils the reality, nature and extent of the facts reported, is in practice one the first measures to be taken.
There is no legal obligation to hold an internal investigation, except if a right of alert is triggered by at least one member of the Works council (“CSE”); although:
- A national Collective bargaining agreement (“ANI”) of 2010 recommends the implementation of an appropriate procedure to identify, understand and address harassment and violence in the workplace;
- Moreover, pursuant to the case law of the Supreme Court (“Cour de cassation”) the absence of an internal investigation after the disclosure of harassment may constitute a violation of the employer’s obligation to prevent occupational risks (Cass. Soc., 29 June 2011, n°09-70.902).
In this regard, the lack of a reaction of an HR Manager informed of a harassment situation may be regarded as a misconduct and may lead to a disciplinary sanction, up to a dismissal (Cass. Soc., 8 March 2017, n°15-24.406).
On the other hand, the practical approach of the investigation is up to the employer: although good practices can be identified[1], the Supreme Court accepts the result of the investigation as valid evidence, even when such good practices are not strictly applied.
This article reminds some of these practices at the light of recent case law.
1. The scope of the interviews to be conducted during an internal investigation
The first question is about the framework of the investigation: should a systematic approach be adopted by interviewing all employees likely to have witnessed acts of harassment?
In a decision of 29 June 2022, the Supreme Court reminds the role of the judge in assessing the value as evidence of the internal investigation (Cass. Soc., 29 June 2022, n°21-11.437).
In a case where the employer only interviewed the employees who complained about the harassment, the Court deemed that judges can neither simply dismiss the internal investigation report nor refuse to examine the other elements of proof communicated by the parties.
Our recommendation consists of hearing, in the framework of an internal investigation:
- Direct witnesses (declared or in frequent contact with the victims and potential harassers);
- Employees who have complained of harassment.
On the other hand, employees who do not belong to this “first circle” should be interviewed at a later stage, if it is relevant to the investigation (was this employee mentioned during the other interviews? Will he or she male it possible to confirm a statement? Will he or she bring something new to the investigation?).
Depending on the circumstances of the case, this allows to adapt the investigation to the nature and seriousness of the facts brought to the company’s attention, to bring balance between serious information gathering and counterproductive comprehensiveness:
- Too extensive, the investigation may generate a miscommunication about the incident by bringing too many employees into its scope, when such a situation requires to act swiftly and discreetly.
- Excessively limited, the investigation may give rise to criticism, or event to its results being questioned.
2. The absence of an obligation to hear the alleged harasser
In a decision of 29 June 2022, the Supreme Court specified that it was not mandatory, during an internal investigation:
- To hear the alleged harasser;
- To confront him or her with the plaintiff employees;
- To give him or her access to the file and documents collected during the investigation.
The rights of the defence are not disregarded, insofar as the employee can provide explanations during the pre-dismissal interview, if applicable, or during legal proceedings (Cass. Soc., 29 June 2022, n°20-22.220).
The internal investigation carried out by the employer without the accused employee’s version is therefore admissible evidence.
However, avoiding confrontation may look shady to the judges.
Our recommendation is to systematically include the accused employee in the interviews conducted as part of the internal investigation in order to demonstrate impartiality and to obtain a complete view of the facts, enabling the most appropriate decision to be taken at the end of the investigation.
3. The staff representative (“CSE”) does not have to be involved in the internal investigation
Except for the exercise of their right to alert[2], the employer is not obliged to involve the “CSE” in the internal investigation.
This is the solution adopted by the Supreme Court in a case where the unloyalty of an investigation that revealed moral harassment, conducted by the HR Department without including the staff representatives, was raised (Cass. Soc., 1 June 2022, n°20-22.058).
However, in order to avoid the risk of bias in the analysis, our recommendation is to involve the “CSE” members in the internal investigation, but to make sure they don’t take the lead: the conduct of the investigation is first of all the employer’s responsibility.
The harassment referent in the “CSE” is then the preferred point of contact.
Furthermore, when facing a tricky cases, it is advisable to entrust the lead of the investigation to an external consultant.
These three decisions illustrate the pragmatic approach of the Supreme Court, which unreservedly accepts the results of investigations which, in certain cases, may have seemed insufficiently serious.
However, the internal investigation remains a delicate exercise that requires to be framed and conducted with sufficient objectivity and discernment.
Otherwise, and even if it constitutes an admissible form of evidence, its strength as evidence is likely to be reduced.
[1] See for example the guide against sexual harassment: https://travail-emploi.gouv.fr/IMG/pdf/30645_dicom_-_guide_contre_harce_lement_sexuel_val_v4_bd_ok-2.pdf
[2] Article L.2312-59 of the Labour Code
Jacques Perotto, Partner, and Anne-Sophie Houbart, Associate.