Moral harassment and protection against dismissal

In my practice, I have found that employers when in conflict with their employees, and who have made the decision to dismiss them, have sometimes taken quite some time before actually terminating the employee’s contract.

This relative slowness between the time that the decision to dismiss is made, and its actual notification to the employee can sometimes be costly for the employer.

Indeed, in certain specific situations, the informed employee, foreseeing a dismissal, can use the conflict or the difference of opinion with his employer to invoke facts of moral harassment at work.

They can then turn to the external prevention advisor, normally designated in the company’s work regulations, and submit a formal intervention request for acts of moral harassment, which is then notified to the employer.

As soon as such a request is made, the employee benefits from protection against dismissal in accordance with Article 32tredecies of the Act of 4 August 1996 on the welfare of workers.

Although it is always possible to dismiss the employee after filing the formal request for intervention, the employer must, in this case, demonstrate that the dismissal took place for reasons unrelated to the complaint, which is not easy since, in this kind of situation, doubt is often present.

If the employer is unable to prove that there is no link between the dismissal and the complaint, they are then required to pay their employee compensation equivalent to six months’ remuneration.

The legislator wanted to protect the employee against “retaliation” dismissal, that which occurs in response to the worker’s complaint. The law here is well meaning and placed, and its application in many situations makes it possible to come to the aid of employees in distress.

However, in practice, this legal mechanism can give rise to certain abuses, which are difficult to sanction.

Indeed, although article 6.7 ° of the law of 4 August 1996 relating to the well-being of workers punishes “any abusive use of procedures”, it should be noted that protection against dismissal does not depend on whether or not the worker’s complaint is founded.

Likewise, the employee’s inability to prove the facts they invoke in support of their complaint (even not constituting harassment) does not constitute abuse either.