We already knew that the employment division of the French Supreme Civil Court (“Cour de Cassation”) expected something close to “perfection” from employers. However, until now, we were not fully aware that French Supreme Administrative Court (“Conseil d’Etat”) required employers also to demonstrate psychic talents.
In this particular case (CE No 349496), the Conseil d’Etat has held as discriminatory (and has therefore invalidated) the dismissal of a protected employee (a trade union representative) who was violent and aggressive, on the grounds that the dismissal was based on his state of health. The problem is that this health issue had been discovered following a psychiatric analysis ordered by the Administrative Court conducted only after notification of dismissal (dismissal for misconduct having already been duly authorised by the Work Inspector), which revealed that the individual had been suffering from “psychological distress” during the events which led to his dismissal. So now the good French employer must presumably ask the misbehaving employee whether he is being violent and aggressive because he is ill, or just because he is by nature violent and aggressive. The question of how the victim of what would otherwise clearly be dismissable conduct is supposed to react is not addressed in the decision. It also leaves us wondering whether the same excuse could be used more than once – surely there must come a point where violence and aggression become intolerable in the workplace regardless of whether they are medically-motivated or not.
In fact this is not the first case in France where a dismissal has been overturned by reason of unforeseeable events occurring after it. See our post of 9 April 2013 for an unhappy story of what can happen when you dismiss someone for losing their driving licence, only to have that disqualification reversed on a subsequent appeal. So overall, it appears that French CEOs and HR directors, who already have to have many and varied tools in their arsenal, must from now also keep crystal balls and tarot cards in their offices!
