In its ruling of June 12, 2024, the Court of Cassation further refines its case-law definition of the employer’s obligation of safety as a duty of means, holding that an internal investigation is optional in the event of a report of facts likely to constitute a situation of moral harassment, provided that the employer has taken sufficient measures to preserve the employee’s health and safety, notwithstanding the absence of an investigation.

A cornerstone of the employment relationship, with case-law contours that are sometimes unclear, the obligation of safety is a major issue for the employer. Actions for breach of this obligation are increasing, alongside and sometimes jointly with actions seeking recognition of moral harassment. In this context, is the conduct of an internal investigation a mandatory prerequisite for compliance with the employer’s obligation of safety in the event of an alert relating to a situation of moral harassment?

In its ruling of June 12, 2024 [1], the Social Chamber of the Court of Cassation answers in the negative, considering that the employer had not, notwithstanding the absence of an internal investigation, failed in its obligation of safety, in view of the other measures taken by the latter (I.). The scope of this ruling must nevertheless be qualified, and the conduct of an internal investigation often remains necessary (II.).

1. The obligation to conduct an internal investigation is not necessarily a prerequisite for compliance with the obligation of safety
2. The employer’s various levers for complying with its obligation of safety

Obligation of safety. The employer is bound, toward its employees, by an obligation to “take the necessary measures to ensure safety and protect the physical and mental health of workers” [2]. This naturally implies that it ensures compliance with all the necessary provisions to “prevent acts of moral harassment” [3].

Initially, this was an obligation of result. In matters of moral harassment, the Court of Cassation thus held that the employer failed in its obligation as soon as an employee was the victim, in the workplace, of physical or moral violence or harassment committed by another employee, even where the employer had taken measures to put an end to such conduct [4].

Case law now considers that this is a “heightened” duty of means. The employer may therefore be exempted from liability provided that it can demonstrate that it did everything possible to perform its obligation (i.) upstream through prevention, information and training actions and (ii.) downstream, by reacting as soon as it is informed of the existence of conduct likely to characterize a situation of moral harassment [5].

By way of illustration, the following measures were deemed sufficient – in light of the facts of the case – following a report of facts likely to be classified as moral harassment:

upstream: (i) the implementation of an internal alert procedure and (ii) the inclusion of this procedure in the internal regulations; and
downstream: (iii) the immediate initiation of an internal investigation into the reality of the facts, (iv) the organization of a mediation meeting with the occupational physician, the Human Resources Director and three employee representatives and, finally, (v) the implementation of a mediation assignment for three months between the two employees concerned [6].

1. The absence of an investigation does not, in itself, make it possible to characterize a breach of the obligation of safety

Is the internal investigation indispensable for compliance with the employer’s obligation of safety? Although the Court of Cassation has, to date, refrained from defining the “sufficient measures” capable of ensuring compliance with the obligation to prevent occupational risks, case law strongly tended to find that the employer had committed a breach where no internal investigation had been conducted following a report of moral harassment.

It thus held that (i) the internal investigation enables the employer to have exact knowledge of the reality, nature and extent of the alleged facts and to take appropriate measures [7] and, above all, more specifically, that (ii) an employer who undertakes no serious investigation fails in its obligation of result with regard to the protection of the health and safety of the employee victim of harassment [8].

Consistently, trial courts held that: “the obligation to prevent occupational risks […] requires the employer […] to implement prevention actions […], in particular to carry out an investigation as soon as possible facts of moral harassment suffered by an employee are reported to it” [9].

Even more categorically, the Dijon Court of Appeal held in 2023: “it is established that an employer fails in its obligation to prevent occupational risks where it does not carry out an internal investigation in the event of a report of facts resembling, in particular, moral harassment by one of its employees” [10].

However, as was recalled in the report of Ms. OTT, Judge at the Court of Cassation, on the occasion of the commented ruling of June 12, 2024, the Social Chamber had: “not, however, established the principle of an obligation for an employer, alerted to possible moral harassment, to carry out an internal investigation” [11].

The initiation of an internal investigation may in fact be necessary, but not sufficient. The Court of Cassation ruled accordingly in a case where the employer had conducted an internal investigation following a report of facts of moral harassment, but had nevertheless failed in its obligation of safety “for lack of information and training actions capable of preventing the occurrence of acts of moral harassment” [12].

More specifically, trial judges have been able to consider that the employer fails in its obligation of safety where it:

• “took no concrete measure aimed at protecting [the employee] from the aggressor employee when she returned to her position,” notwithstanding the investigation carried out [13];
• fails to justify having taken “concrete measures” with regard to employees displaying aggressive and threatening behavior, despite various preventive measures aimed at easing the social climate (psychological support unit, interviews with all the employees concerned, remote working for the employees who raised the alert) and the initiation of an internal investigation [14].

In its ruling of June 12, 2024, the Court of Cassation confirms that the internal investigation is not a mandatory measure in the event of a report of facts of moral harassment [15].

The employee argued that her employer had failed in its obligation of safety by taking “no measure” and ordering “no internal investigation” after her report of conduct likely to constitute moral harassment.

The Versailles Court of Appeal did not follow this argument, considering that the employer had not failed in its obligation of safety insofar as (i) the responses given to the employee by her management on the points raised and (ii) the position taken by her hierarchy with regard to the dispute opposing her to one of her colleagues were sufficient to satisfy the employer’s obligation of safety, which was therefore not required to carry out an investigation into the facts referred to in the alert [16].

The Court of Cassation validates the reasoning of the trial judges and considers that “the court of appeal […] showed that the employer had taken sufficient measures capable of preserving the employee’s health and safety, [and] could infer therefrom, notwithstanding the absence of an internal investigation, that it had not failed in its obligation of safety” [17].

This ruling remains, in our view, consistent with the case law of the Court of Cassation, which considers that compliance with the obligation of safety must be assessed globally and falls within the sovereign assessment of the trial judges.

The Supreme Court thus adopts a pragmatic approach, consistent with the gradual abandonment of the obligation of safety as an obligation of result in favor of a heightened duty of means [18].

It should of course be specified that where the alert relating to facts of moral harassment has been triggered by a member of the Social and Economic Committee (CSE), the investigation is not an option and must be initiated by the employer “without delay” [19].

1. A fact-specific solution of relative scope
2. The interest in conducting an internal investigation is not limited to verifying whether the facts qualify as “moral harassment”

A tool necessary for assessing the truthfulness of the reported facts. The internal investigation offers, both in view of its evidentiary value and with regard to respect for adversarial proceedings, an appropriate tool for “verifying the truthfulness” [20] of the reported conduct or assessing its extent.

The Advocate General had moreover recalled, on the occasion of the ruling of June 12, 2024, that: “the internal investigation is one of the elements enabling the employer to establish that it has taken stock of the facts brought to its attention and that it has tried to shed light on them in order to take the most appropriate measures” [21].

The Versailles Court of Appeal had considered, in its sovereign assessment, that the existence of moral harassment had not been established. One may wonder whether this had an impact on the Court of Cassation’s assessment regarding the employer’s compliance with its obligation of safety.

The Court of Cassation nevertheless considers that the implementation by the employer of measures to prevent situations of harassment [22] is distinct from its obligation of safety [23]. In other words, conducting an investigation makes it possible not only to satisfy the obligation to prevent facts constituting moral harassment [24], but also the general obligation to prevent occupational risks [25].

Thus, the fact that the facts of moral harassment are ultimately not established does not prevent the employer from having failed in its obligation of safety [26].

Conducting the internal investigation is therefore necessary on a dual basis: (i) in order to establish the reality of the facts from the perspective of the obligation to prevent moral harassment and (ii) in order to demonstrate that the employer is taking concrete measures under its obligation of safety.

The Court of Cassation in fact censured a ruling that had dismissed an employee’s claim for damages for breach of the obligation of safety after finding that no repeated acts of moral harassment had been established, the court of appeal considering that the employer could not be blamed for not having carried out an investigation and thereby for having failed in its obligation of safety [27].

The fact that moral harassment was not recognized in the case that led to the ruling of June 12, 2024 was therefore not, in our opinion, decisive in the Court of Cassation’s assessment regarding the employer’s obligation of safety.

1. An internal investigation that may still remain, in practice, the necessary tool

Obligation imposed by the social partners. Since the national interprofessional agreement of March 26, 2010 relating to harassment and violence at work, the social partners have imposed on employers the obligation to deal promptly with complaints made by employees in matters of harassment at work, by immediately triggering an investigation [28].

The definition of moral harassment given in the ANI is moreover particularly broad, since the social partners go so far as to include “minor cases of lack of respect” [29].

This conventional obligation applies in principle to all employers within the scope of the ANI, namely companies in industry, trade and services, because the ANI was signed by Medef, CGPME and UPA.

The normative scope of this conventional obligation must of course be qualified, (i) since the ANI provides no sanction for the employer in the absence of the immediate initiation of an investigation, and (ii) since, to our knowledge, case law has not yet relied on this basis to recognize a breach of the employer’s obligation of safety.

The Advocate General nevertheless recalled these provisions in her opinion relating to the ruling of June 12, 2024, considering that “having regard to the safeguards surrounding it, but also to the fact that it enables the employer to react quickly, the internal investigation is indeed the most appropriate and effective means when facts of harassment or violence are reported to it” [30].

Combination of legal grounds. Despite the absence, indeed, of a general obligation in principle to carry out an internal investigation, the initiation of such a procedure should, in our view, nevertheless be encouraged where sufficiently credible warning signs exist, since it (i) makes it possible to establish the truthfulness of the facts in compliance with the adversarial principle, thus satisfying the obligation to prevent facts of moral harassment, and (ii) constitutes a “measure” capable of ensuring safety and protecting the physical and mental health of workers, thus satisfying the general obligation to prevent occupational risks.

Lastly, let us recall that the Advocate General had recommended considering that the absence of an internal investigation constituted a breach by the employer of its obligation of safety in the following terms: “the court of appeal could not validly hold that the employer had not failed in its obligation of safety toward the employee when it had not carried out an internal investigation after she had reported facts of moral harassment to it” [31], in line with trial case law which has been able to hold that there is, in principle, an obligation to conduct an investigation in the event of a report of facts constituting moral harassment [32].

The scope of the ruling must therefore, in our view, be qualified and the assessment of the appropriateness of conducting an internal investigation remains – as before – a matter to be determined “case by case.”

[1] Cass. soc., June 12, 2024, no. 23-13.975, FS-B No. Lexbase: A48605HH.

[2] Labor Code, art. L. 4121-1 et seq. No. Lexbase: L8043LGY.

[3] Labor Code, art. L. 1152-4 No. Lexbase: L5790I3T.

[4] Cass. soc., February 3, 2010, no. 08-40.144, FP-P+B+R No. Lexbase: A6060ERU; Cass. soc., February 3, 2010, no. 08-44.019, FP-P+B+R No. Lexbase: A6087ERU.

[5] Cass. soc., March 23, 2022, no. 20-23.272, F-D No. Lexbase: A32017RY.

[6] Cass. soc., June 1, 2016, no. 14-19.702, FS-P+B+R+I No. Lexbase: A2663RR3.

[7] Cass. soc., June 29, 2011, no. 09-70.902, FS-P+B No. Lexbase: A6495HU4.

[8] Cass. soc., July 9, 2014, no. 13-16.797, F-D No. Lexbase: A4112MUT; Cass. soc., April 7, 2016, no. 14-23.705, F-D No. Lexbase: A1501RCL.

[9] CA Bourges, December 18, 2020, no. 20/00039 No. Lexbase: A42924A9.

[10] CA Dijon, July 20, 2023, no. 22/00005 No. Lexbase: A25301CP.

[11] Report of Ms. OTT, Judge at the Court of Cassation, relating to the ruling of June 12, 2024 no. 23-13.975 [online].

[12] Cass. soc., October 5, 2016 no. 15-20.140, F-D No. Lexbase: A4439R7K.

[13] CA Rennes, March 18, 2021, no. 17/06637 No. Lexbase: A54904LW.

[14] CA Paris, February 23, 2023, no. 21/04032 No. Lexbase: A99649ER.

[15] Cass. soc., June 12, 2024, no. 23-13.975, FS-B No. Lexbase: A48605HH.

[16] CA Versailles, January 26, 2023, no. 22/01192 No. Lexbase: A26649BB.

[17] Cass. soc., June 12, 2024, no. 23-13.975, FS-B No. Lexbase: A48605HH.

[18] Cass. soc., November 25, 2015, no. 14-24.444, FP-P+B+R+I No. Lexbase: A7767NXX.

[19] Labor Code, art. L. 2312-59 No. Lexbase: L1771LRZ.

[20] Cass. soc., June 29, 2022, no. 20-22.220, FS-B No. Lexbase: A859378R.

[21] Opinion of Ms. Roques, Advocate General in charge of reporting, relating to the ruling of June 12, 2024, no. 23-13.975 [online].

[22] Labor Code, art. L. 1154-1 No. Lexbase: L6799K9P.

[23] Labor Code, art. L. 4121-1 No. Lexbase: L8043LGY and L. 4121-2 No. Lexbase: L6801K9R.

[24] Labor Code, art. L. 1154-1.

[25] Labor Code, arts. L. 4121-1 and L. 4121-2.

[26] Cass. soc., November 23, 2022, no. 21-18.951, F-D No. Lexbase: A95288UG.

[27] Cass. soc., November 27, 2019, no. 18-10.551, FP-P+B No. Lexbase: A3486Z4U.

[28] ANI of March 26, 2010 on harassment and violence at work, extended by order of July 23, 2010 [online].

[29] ANI of March 26, 2010 on harassment and violence at work, extended by order of July 23, 2010.

[30] Opinion of Ms. Roques, Advocate General in charge of reporting, relating to the ruling of June 12, 2024, no. 23-13.975.

[31] Opinion of Ms. Roques, Advocate General in charge of reporting, relating to the ruling of June 12, 2024, no. 23-13.975.

[32] CA Bourges, December 18, 2020, cited above; CA Dijon, July 20, 2023, cited above.

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