- Reminder of the principles
Employers must take the necessary measures to ensure the safety and protect the physical and mental health of workers (Article L. 4121-1 of the Labour Code).
As soon as they are informed of facts that may constitute harassment, they must take the necessary measures without delay to put an end to it.
In practice, this usually involves conducting an internal investigation within the company.
If the allegations of harassment are confirmed, the investigation report will enable appropriate measures to be put in place and, where necessary, support the dismissal of the perpetrator of the harassment.
Provided that no unlawful means of investigation have been used, the investigation report is admissible as evidence (Cass. soc. 29 June 2022 no. 21-11.437).
Beyond the question of whether an investigation is appropriate, it is the manner in which it is conducted, the composition of the investigation committee and the drafting of the investigation report that are of particular importance, both in demonstrating the employer’s compliance with its safety obligation and in justifying any dismissal.
If the alert comes from a member of the social and economic committee, the employer is required to conduct the investigation with that member of the SEC (Article L. 2312-59 of the Labour Code).
If the alert comes from someone other than a member of the SEC, it is up to the employer to determine the composition of the investigation committee.
In a framework decision dated 5 February 2025 (No. 2025-019), the Defender of Rights provides a number of general recommendations concerning internal investigations.
2. Clarification provided by the Court of Cassation in a ruling dated 18 June 2025
In a ruling dated 18 June 2025 (No. 23-19.022), the Court of Cassation reiterated that in the event of the dismissal of an employee for moral or sexual harassment, it is up to the trial judges to assess the probative value of an internal investigation conducted by the employer, taking into account, where applicable, other evidence produced by the parties.
In this case, the employer had conducted an internal investigation jointly with the Health and Safety Committee. Based on the results of the investigation, the employer had dismissed an associate director.
The latter challenged his dismissal in court.
During the proceedings, the employer produced only part of the investigation.
The Court of Appeal ruled that the allegations against the employee were not sufficiently substantiated, insofar as:
- the entire investigation had not been submitted for consideration; only five of the fourteen interview reports had been produced; it could not therefore be ruled out that some reports were missing from the documents because they were favourable to the employee;
- certain passages of the reports produced had been truncated;
- the names of the persons mentioned in certain reports had been deleted;
- the allegations were not corroborated by other evidence.
The trial judges concluded that there were no real and serious grounds for dismissal, as the benefit of the doubt should be given to the employee.
The employer appealed to the Court of Cassation, citing in particular the desire of certain employees to preserve their anonymity and protect their privacy.
The High Court was not convinced by the employer’s arguments. It deferred to the sovereign judgement of the trial judges and dismissed the employer’s appeal.
This ruling demonstrates that the mere fact that the employer conducted an internal investigation which concluded that harassment had taken place is not sufficient to establish the validity of the dismissal of the perpetrator of the alleged acts. The employer must therefore exercise rigour, both in conducting the investigation and in selecting the evidence to be presented at trial. This is all the more important given that if the dismissal is for serious misconduct, which will often be the case in the event of harassment, the burden of proof rests solely with the employer.