The law of 29 March 2023 introduces a new chapter VI in the volume II, title IV of the Labour Code and gives a clear definition of the concept of moral harassment in the new article L.246-2: "any conduct which, by its repetition, or its systematization, harms the dignity or the psychological or physical integrity of a person."
The article further specifies that "business trips, professional trainings, communications related to or resulting from work by any means whatsoever, even outside normal working hours, are an integral part of the execution of work."
In the new article L.246-3, it is specified that the employer, as well as the employee, must refrain from any moral harassment in the context of work relations. The same rule applies to any customer or supplier of the company.
According to article L.246-7, any act of moral harassment is punishable by a fine of 251 to 2,500 euros.
According to the new article L.246-4, the employee victim cannot be subject to reprisals because of his or her protests or refusals to accept a behaviour of moral harassment committed by the employer or other hierarchical superiors, colleagues and external people connected with the employer. The same protection is granted to the employee who has testified to acts of moral harassment.
According to article L.246-7, any provision or act engaging in such reprisals will be null and void by operation of law and the individuals having committed them may be subject to a fine of 251 to 2,500 euros.
The employer, duly informed, shall ensure that any moral harassment against his employees of which he is aware ceases immediately. He shall take a decision after informing and consulting the staff delegation or, in the absence thereof, the entire staff.
The measures that the employer shall take are specified by law. Any failure to take or determine such measures is punishable by a fine of 251 to 2,500 euros, according to article L.246-7, as is the failure to carry out an internal assessment of the effectiveness of the preventive measures.
The measures must first be adapted to the nature of the activities and the size of the company and must at least involve the definition of the means available to the victims (reception, assistance, etc.) and a rapid and impartial investigation of the facts relating to moral harassment. They must also at least raise the awareness of employees and managers about the definition of moral harassment and its prevention; and finally, inform the staff delegation or the entire staff about the employer's obligations in preventing moral harassment incidents.
In this context, the implementation of a specific and adapted procedure within the company (charter, policy, internal regulations) is strongly recommended.
In the event that the harassment continues despite the measures taken, the law provides that the Labor and Mines Inspectorate (Inspection du Travail et des Mines – ITM) shall conduct an investigation within the structure where the harassment was reported by the victim employee or the staff delegation.
Following this investigation, during which all parties to the conflict are heard, the Labor and Mines Inspectorate draws up a report containing, if necessary, recommendations and proposals for measures. The Labor and Mines Inspectorate has a deadline of 45 days following the reception of the file to transmit the complete report to the employer concerned; the Labor and Mines Inspectorate then enjoins the employer to take the appropriate measures within a period of time determined by the circumstances of the report.
The Labour and Mines Inspectorate may impose an administrative fine, pursuant to the article L.614-13, on the employer who fails to comply with this injunction.
According to the new article L.246-6, the victimized employee may refuse to continue the performance of the employment contract and terminate the contract without notice for serious reasons, with damages to be paid by the employer whose fault caused the immediate termination, in accordance with article L.124-10.