French employment law requires proportionality in implementing disciplinary measures. In other words, the employer must take into account not only the reproached facts, but the context in which the misconduct was committed, before enacting a sanction.
The circumstances will determine the degree of the employee’s fault/liability. The judge has the power to annul disciplinary measures found disproportionate and to award damages to the employee, except when the sanction is dismissal.
A recent Cour de cassation ruling illustrates these principles. In the case at point, the employee was a specialized educator in a rehabilitation center. She slapped a teenager (who was a resident in the center) in the face, despite the fact that violence was strictly forbidden by the internal regulation. The employee acknowledged the incident and the employer sent the employee a warning letter.
Both the Court of Appeals and the Cour de cassation found the sanction disproportionate, even if the warning letter was the lowest sanction under the law. Indeed, a slap does not automatically justify disciplinary measures such as warning letters. The judges examined the context of the incident and noticed that the employee had 25 years’ seniority and that the slap was an isolated event due to a particularly difficult situation that the employee was trying to resolve – the teenager was fighting with another resident.
However, in other circumstances, a slap can constitute gross misconduct justifying the termination of the employment contract. For instance, the dismissal of an assistant nurse who slapped a patient was ruled to be a valid termination.
Author: Pascaline Kleim