Some sites offer employees to rate the company that employs them.
This practice, inspired by Anglo-Saxon sites, is not without risk for the employee because if freedom of expression is a protected freedom, its abuse can lead to sanctions or even dismissal.
This was decided by the Court of Appeal of Versailles on April 7, 2016 and its decision was approved by the Court of Cassation in a judgment of April 11, 2018 ( Cass., April 11, 2018, No. 16-18590). ).
What were the facts?
The artistic director of a communication agency posted anonymously, on a site accessible to the public, the following comment, critical with respect to his company:
“A communication agency like the others … in appearance. Although lost at the bottom of an industrial zone, without trade nearby, the premises are pleasant, the correct equipment, the friendly teams. Nothing wrong with that side; the days are pleasant. It is looking at the long term that it spoils. The management is drastic in every way. Minimum wage, no premium, or even overtime paid (except for Sunday for the foolhardy !!!) … The agency does not even have a website. The height for a company in this sector! The customer is king in all circumstances, no matter if it is necessary to work at a loss, and your work will sometimes come down in front of the customer. Nothing motivates motivation, if only promises never kept. But it’s only been a while. The management does not hide it: “your motivation is to keep your job”. As proof, the constant turnover: “one departure per month on average, for an average workforce of around twenty people”.
The employer was informed of the publication of this comment by one of its clients.
She first asked the site to remove this comment.
Then she identified, within her company, the computer from which this message had been sent, which was that of the artistic director, who acknowledged being the author of the comment, before retracting.
The Court of Appeal of Versailles ruled that the writing of this message on a site accessible to all public characterized an abuse of the freedom of expression , constituting a serious fault. The judges noted “the excessive character of the message published on a site accessible to all public, and whose terms were so unfair as malicious against the employer “.
The Court of Cassation, seized by the employee of an appeal against this decision, rejected this appeal: it approves the first judges to have considered that this failure made impossible the maintenance of the employee in the company and constituted a serious fault.
The Labor Code specifies that ” no one may make restrictions on the rights of individuals and individual and collective liberties that are not justified by the nature of the task to be performed and proportionate to the aim pursued ” (Article L1121-1).
The case law has repeatedly stated that the employee enjoys, within the company, and outside, a freedom of expression, except abuse , and unless restrictions justified by the nature of the task to be performed and proportionate to the purpose sought (Cass soc April 28, 1988, April 28, 2011, March 27, 2013).
In the decision of 11 April 2018, the judges noted the excessive nature of the message, as well as the unfair and malicious terms of the message, all of which characterized an abuse of freedom of expression.
Such abuse had already been noted in a 2010 labor tribunal decision, concerning an employee who had published on a social network open to the public, statements that undermined the image of the company and the authority and the reputation of a supervisor (Labor Court of Boulogne-Billancourt, November 19, 2010) ( see the article published on the Practical Blog of Labor Law ).
On the other hand, in an earlier decision of 7 February 2018, the Versailles Court of Appeal ruled that an employee who makes excessive remarks about his employer on his Facebook account, which is only accessible to his friends, is not not in a public space and can not be fired for this reason ( see the article published on the Practical Blog of labor law ).
This decision also clarifies the deadline for initiating dismissal proceedings for serious misconduct: the employer was accused of having waited three weeks to initiate the dismissal procedure, which, according to the employee, was incompatible with the qualification of serious fault.
On the contrary, the Court of Cassation approved the Court of Appeal’s finding that the employer had acted within a “limited time”.