Social right. A magnificent textbook case has gone around the world. In a young training firm, “fun & professional” is the official culture. But with alcoholic drinks and seminars combining promiscuity and bullying. Refusing to participate, a senior director was dismissed for professional inadequacy on… four grounds, the first of which is singular: “Profound cultural misalignment, moreover and visible”. To this director with four years of seniority, 496,299 euros were awarded by the Paris court on January 30, 2024.
A decision that raises two questions. On the level of compensation first, the Macron scale which in 2017 introduced ceilings was not applicable, not so much because of the date of the dismissal – March 11, 2015 – as its justification. It was not a trivial defect with a real and serious cause, but an attack on a “fundamental” freedom: freedom of expression.
It is up to the employee, and him alone, to choose: request reinstatement or heavy damages. But how to reach 496,299 euros? This was the skill of his advice: placing itself on the ground of reintegration. Because the dismissal is retroactively canceled, the employer is first ordered to pay a dissuasive “eviction compensation”, corresponding to the salaries that the executive would have received between his request and his actual reinstatement. Often several years…
The former director having found work sixteen months later, should the sums in question be deducted? No, this is again a fundamental freedom. The solution would have been the opposite if it had been about freedom of clothing.
Commando life, walking on embers
But were the other reasons (loss of customers, managerial failings) real and serious? The Court of Cassation here continues its policy of preventive deterrence. When an employer invokes several reasons, it is enough for only one to infringe a fundamental freedom for the principle of “contaminating pattern” : simply alluding to it authorizes the judge not to examine the other reasons. Even if article L. 1235-2-1 created on September 22, 2017 sought to limit its effects.
Second question posed by the decision of January 30: can you lose your job for “cultural misalignment”? “The good faith that must be respected within the framework of an employment contract does not imply a duty of absolute loyalty, nor an obligation of reserve resulting in the subjection of the worker to the interests of the employer” (Court of Strasbourg, February 24, 2024). And since 1999, the Court of Cassation has recalled that being an executive does not affect freedom of expression.
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