{"id":4374,"date":"2023-04-07T13:55:00","date_gmt":"2023-04-07T11:55:00","guid":{"rendered":"https:\/\/daher-avocats.com\/?p=4374"},"modified":"2026-04-09T17:07:32","modified_gmt":"2026-04-09T15:07:32","slug":"freedom-of-expression-lessons-from-recent-case-law","status":"publish","type":"post","link":"https:\/\/daher-avocats.com\/index.php\/en\/2023\/04\/07\/freedom-of-expression-lessons-from-recent-case-law\/","title":{"rendered":"Freedom of expression: lessons from recent case law"},"content":{"rendered":"\t\t
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Legal News<\/span><\/h2>\t\t\t\t<\/div>\n\t\t\t\t
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Freedom of expression: lessons from recent case law<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t

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Published on April 7, 2023<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t

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By H\u00e9l\u00e8ne DAHER, Partner, and Lola de MONTALEMBERT, Senior Associate, DAHER AVOCATS<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t

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Recent case law from the Social Chamber of the Court of Cassation is rich in decisions concerning the protection and contours of employees\u2019 freedom of expression. An analysis of these decisions and of the points requiring vigilance that emerge from them by H\u00e9l\u00e8ne Daher and Lola de Montalembert of Daher Avocats.<\/p>

Dismissal based on a non-abusive exercise of freedom of expression is void, even where other grievances exist<\/strong><\/p>

  1. In a \u201cClavaud\u201d ruling, named after a worker who had criticized his working conditions in the press, the Court of Cassation established the principle according to which, except in cases of abuse, the exercise by an employee of freedom of expression inside and outside the company cannot justify a sanction (Cass. soc. 28-4-1988 no. 87-41.804 P).<\/li><\/ol>

    Because of its nature as a fundamental freedom protected by the Constitution, European law and the Labor Code, a dismissal pronounced on account of a non-abusive exercise of freedom of expression is void, and the application of the Macron scale is excluded (Labor Code, art. L 1235-3). The stakes may therefore be significant.<\/p>

    In a ruling of June 29, 2022, the Court of Cassation had to rule on the case of an employee dismissed on the basis of several grievances \u2013 including the sending of a letter to the Chairman of the group\u2019s Executive Board in which he criticized and challenged his line manager and the group\u2019s strategic choices. Rejecting the company\u2019s argument, the trial judges held that the remarks were not insulting, excessive or defamatory and therefore that there had been no abuse by the employee of his freedom of expression. On that basis alone, and without examining the other grievances, the court of appeal found that the ground for dismissal relied upon was unlawful, a line of reasoning followed by the Court of Cassation (Cass. soc. 29-6-2022 no. 20-16.060 FS-B: FRS 15\/22 inf. 2 p. 3).<\/p>

    The theory of the \u201ccontaminating ground\u201d<\/strong><\/p>

    1. The dismissal letter, which sets out the ground or grounds relied upon by the employer, defines the limits of the dispute (Labor Code, arts. L 1232-6 and L 1235-2), and the trial judges must examine all the grievances raised in the dismissal letter (Cass. soc. 8-6-2016 no. 14-16.978 F-D).<\/li><\/ol>

      A dismissal may therefore in principle be justified even where one inadmissible grievance exists, if other grievances justify it (Cass. soc. 12-1-2005 no. 02-47.323 F-D: RJS 4\/05 no. 364).<\/p>

      1. However, in the ruling of June 29, 2022, the Court of Cassation departs from this principle by applying the theory of the \u201ccontaminating ground.\u201d<\/li><\/ol>

        In her opinion relating to this ruling, Advocate General Ms. Laulom recalls the definition of the contaminating ground by stating that \u201cwhere the unlawfulness of one ground renders the dismissal void, it \u2018contaminates\u2019 the other grounds, which will not be capable of justifying the dismissal.\u201d The other grievances set out in the dismissal letter are therefore without effect in assessing whether the dismissal is justified.<\/p>

        1. This principle was first applied in relation to an employee dismissed after reporting mistreatment of vulnerable persons (Cass. soc. 26-9-2007 no. 06-40.039 FS-PB: RJS 12\/07 no. 1271). The Court of Cassation thus held that the mere fact of having dismissed an employee for such reports was sufficient to render the dismissal void, without any need to examine the other grievances.<\/li><\/ol>

          Thus, the theory of the contaminating ground is capable of applying whenever one of the grievances is discriminatory or infringes a fundamental freedom.<\/p>

          Accordingly, it was subsequently applied in matters of strike action (Cass. soc. 8-7-2009 no. 08-40.139 FS-PB: RJS 10\/09 no. 828), moral harassment (Cass. soc. 14-3-2012 no. 10-28.335 F-D: RJS 5\/12 no. 414), discrimination on the basis of union activities (Cass. soc. 2-6-2010 no. 08-40.628 FP-PBR: RJS 8-9\/10 no. 716), the right to bring legal proceedings (Cass. soc. 3-2-2016 no. 14-18.600 FS-PB: RJS 4\/16 no. 246), and also the protection of whistleblowers (Cass. soc. 29-9-2021 no. 19-25.989 FS-D).<\/p>

          1. The consequences of the contaminating ground were clarified by the \u201cMacron ordinances,\u201d with the insertion into the Labor Code of Article L 1235-2-1, according to which, \u201cin the event of a plurality of grounds for dismissal, if one of the grievances alleged against the employee infringes a fundamental freedom, the nullity incurred by the termination does not relieve the judge of examining all the grievances set out, in order to take them into account, where appropriate, in the assessment of the compensation to be awarded to the employee\u201d (Ordinance 2017-1387 of 22-9-2017, art. 4).<\/li><\/ol>

            The other grievances in the dismissal letter may therefore be taken into account by the judges in assessing the compensation relating to the nullity of the dismissal. The employer must, however, ask the judges to do so (Cass. soc. 19-10-2022 no. 21-15.533 FS-B: FRS 20\/22 inf. 1 p. 2).<\/p>

            Ever broader protection of employees\u2019 freedom of expression<\/strong><\/p>

            1. The ruling of June 29, 2022 follows the logical line of case law rendered since 2007, by applying the theory of the \u201ccontaminating ground\u201d to freedom of expression.<\/li><\/ol>

              The Court of Cassation also had the opportunity to reaffirm this in a ruling delivered on November 9, 2022 (Cass. soc. 9-11-2022 no. 21-15.208 F-D: FRS 22\/22 inf. 1 p. 2).<\/p>

              In this ruling, an employee had been dismissed for professional insufficiency and for having refused to adhere to the \u201cfun and pro\u201d values within the company. While the grievances relating to professional insufficiency were held by the trial judges to be serious, the fact that the employer had also mentioned in the dismissal letter the issue of refusal to adhere to the company\u2019s values led to the nullity of the dismissal, notwithstanding the validity of the other grievances.<\/p>

              The Court of Cassation has also established the principle according to which, in the face of a violation of freedom of expression, judges are under an obligation to annul the dismissal (Cass. soc. 16-2-2022 no. 19-17.871 FS-B: RJS 5\/22 no. 241).<\/p>

              It is therefore imperative for employers to exercise caution in drafting the dismissal letter.<\/p>

              The limit to the \u201ccriticisms\u201d made by employees: abuse<\/strong><\/p>

              1. In order to assess abuse of freedom of expression, the trial judges analyze the content of the statements, the context in which they were made, and then their potential impact. They then determine whether the statements are insulting, defamatory or excessive, thereby characterizing an abuse of freedom of expression.<\/li>
              2. Moreover, the employment contract must be performed in good faith (Civil Code, art. 1104; Labor Code, art. L 1222-1). This translates into an obligation of mutual loyalty between the parties, which finds concrete application in matters of freedom of expression.<\/li><\/ol>

                For example, it was held that an employee who reported to one of her colleagues, in front of third parties and outside working time and the workplace, that their boss considered him to be \u201cthe worst painter they had ever had in the company\u201d had breached her duty of loyalty, justifying her dismissal. The judges found that such defamatory remarks had been addressed to another employee of the company in order to give a bad image of its managers and create unease between them and the staff members, which constituted an abuse of her freedom of expression and a breach of her duty of loyalty (Cass. soc. 15-6-2022 no. 21-10.572 F-D: RJS 10\/22 no. 501).<\/p>

                1. However, a breach of the duty of loyalty is not always easy to prove and it may therefore be relevant to strengthen this obligation by incorporating it into the contract.<\/li><\/ol>

                  The interest of contractually formalizing the framework of freedom of expression<\/strong><\/p>

                  1. Indeed, restrictions on rights and freedoms are permitted provided that they are justified by the nature of the task to be performed and proportionate to the aim pursued. Such restrictions may in particular take the form of clauses within the employment contract.<\/li><\/ol>

                    The case of the presenter and comedian \u201cTex\u201d provides an interesting illustration of this type of clause (Cass. soc. 20-4-2022 no. 20-10.852 FS-B: FRS 10\/22 inf. 1 p. 3). He had been dismissed because of a sexist joke on a private channel, while he was in particular bound, under his employment contract, to \u201crespect for the rights of the person,\u201d a principle which was to constitute \u201cone of the major characteristics of the spirit intended to animate public television channel programs.\u201d Under this clause, the presenter had also undertaken to reject any form of complacency toward remarks likely to expose a person or group of persons to hatred or contempt. Although the judges took into account the context in which these remarks were made and their publicity (prime time, the #MeToo movement, a few days after the International Day for the Elimination of Violence against Women), it was first and foremost the breach of this contractual obligation that justified the presenter\u2019s dismissal.<\/p>

                    1. It may therefore be appropriate, for example, to provide for a \u201crespect for the rights of the person\u201d clause in the employment contract of employees, particularly those whose role may involve speaking publicly (we express no view here other than with regard to employees in the private sector).<\/li><\/ol>

                      This would typically involve formally setting down that public expression must be handled with discernment and moderation, notably, though not only, when a link can easily be made with that person\u2019s employer.<\/p>

                      The situation must of course be assessed according to the position held or the activity of the company before including such a stipulation in the employment contract. Such a clause must naturally be justified and proportionate to the aim pursued.<\/p>

                      1. In summary, while employees\u2019 freedom of expression is not without limits, it is appropriate to act with caution in the event of accusations or criticisms made by an employee. The wording of the dismissal letter is crucial and may have severe consequences for the employer, and it may be appropriate, depending on the circumstances, to anticipate potential abuses in the employment contract by providing for a clause on respect for the rights of persons.<\/li><\/ol>

                        FRS 8\/23 (published on 7\/04\/23) (extract)<\/strong>
                        (c) 2026 Editions Francis Lefebvre<\/strong><\/p>

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                        Legal News Freedom of expression: lessons from recent case law Published on April 7, 2023 By H\u00e9l\u00e8ne DAHER, Partner, and Lola de MONTALEMBERT, Senior Associate, DAHER AVOCATS Recent case law from the Social Chamber of the Court of Cassation is rich in decisions concerning the protection and contours of employees\u2019 freedom of expression. An analysis […]<\/p>\n","protected":false},"author":1,"featured_media":1838,"comment_status":"open","ping_status":"open","sticky":false,"template":"elementor_header_footer","format":"standard","meta":{"ocean_post_layout":"full-screen","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"on","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"off","ocean_display_header":"off","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"on","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"off","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"off","ocean_display_footer_bottom":"off","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"off","ocean_gallery_id":[],"footnotes":""},"categories":[38],"tags":[],"class_list":["post-4374","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-actu-juridique-en","entry","has-media"],"_links":{"self":[{"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/posts\/4374","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/comments?post=4374"}],"version-history":[{"count":7,"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/posts\/4374\/revisions"}],"predecessor-version":[{"id":4481,"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/posts\/4374\/revisions\/4481"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/media\/1838"}],"wp:attachment":[{"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/media?parent=4374"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/categories?post=4374"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/daher-avocats.com\/index.php\/wp-json\/wp\/v2\/tags?post=4374"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}