Internal Investigation into Workplace Moral Harassment in France: A Complete Guide for Employers
Moral harassment at work (harcèlement moral, i.e. workplace bullying) represents a major challenge for employers. When faced with a complaint or a report, conducting a rigorous internal investigation becomes imperative to protect the company and its employees. This process, governed by the French Labour Code, requires method and professionalism to ensure fairness and legal compliance.
Definition and Legal Framework of Moral Harassment
Moral harassment is defined by Article L.1152-1 of the French Labour Code as “repeated acts whose purpose or effect is a deterioration of working conditions liable to infringe upon the employee’s rights and dignity, to impair their physical or mental health, or to compromise their professional future.”
This definition encompasses several essential constituent elements: the repetition of the acts, the intent to harm or the harmful effect, and the impact on the victim. The employer must understand these nuances in order to correctly assess reported situations.
Key point: Article L.1152-4 of the French Labour Code imposes on the employer an obligation of prevention and protection against moral harassment. In the event of a breach, the employer’s liability may be engaged.
The Employer’s Obligations Regarding Investigations
The employer has a legal duty of diligence as soon as it becomes aware of facts potentially constituting moral harassment. This obligation stems from Article L.1152-4 of the French Labour Code and from the employer’s obligation to ensure a safe working environment (obligation de sécurité, a duty of safety producing results).
Responsiveness and Neutrality
The investigation must be conducted as promptly as possible following the report. Any unjustified delay may be interpreted as negligence on the part of the employer. Absolute neutrality is a prerequisite: the investigator must have no connection with the parties involved.
Preserving Confidentiality
The confidentiality of the investigation protects all parties involved. It prevents the spread of rumours and preserves the presumption of innocence of the alleged harasser, while also protecting the alleged victim from potential retaliation.
Methodology of the Internal Investigation
Forming the Investigation Team
The investigation team must be composed of competent and impartial individuals. Depending on the size of the company, it may include a human resources representative, a line manager who is not involved, or may rely on a specialised external investigator.
Practical tip: Appointing a single point of contact to coordinate the investigation ensures consistency in the process and prevents the dispersal of sensitive information.
Planning and Documentation
Each stage of the investigation must be meticulously documented. This traceability makes it possible to justify the steps taken in the event of subsequent litigation and demonstrates the seriousness of the approach adopted by the employer.
Conducting Interviews and Gathering Evidence
Interview with the Complainant
The interview with the person reporting the harassment is the starting point of the investigation. It is appropriate to obtain a detailed account: dates, locations, witnesses present, the exact nature of the alleged facts, and the impact on the person.
The investigator must adopt a supportive attitude while remaining objective. It is essential not to make premature judgments and to explore all aspects of the situation described.
Hearing the Accused Person
Respect for the adversarial principle (principe du contradictoire, the right to be heard) requires hearing the version of the accused person. This interview must be conducted with the same guarantees of neutrality and respect. The person must be able to give their explanation of the alleged facts and provide their own supporting evidence.
Caution: Pursuant to Article L.1152-2 of the French Labour Code, no sanction may be taken against an employee for having reported or given testimony about acts of moral harassment.
Analysing Testimonies and Evidence
Gathering testimony from colleagues is often a decisive element. These witnesses can confirm or refute the allegations and provide additional insight into the work atmosphere and interpersonal relationships.
Written Documentation and Material Evidence
The investigation must also address material evidence: emails, messages, internal memos, performance reviews, and repeated sick leave. These objective elements may corroborate or contradict the testimonies gathered.
Analysing the professional history of the individuals involved, their career progression and any prior incidents may also shed a different light on the situation.
Drafting the Investigation Report
The investigation report must present, in a structured and objective manner, all the evidence gathered. It generally includes a summary of the alleged facts, a record of the interviews conducted, an analysis of the evidence collected, and the reasoned conclusions of the investigation.
Recommendations and Proposed Measures
Depending on the conclusions, the report may recommend various measures: taking no further action if the facts are not established, disciplinary measures if the harassment is proven, or corrective actions to improve the working environment.
Important reminder: Under Article L.1152-3 of the French Labour Code, moral harassment is subject to disciplinary sanction and may justify dismissal for serious misconduct (faute grave).
Post-Investigation Follow-Up and Prevention
The closing of the investigation does not mark the end of the process. Careful follow-up of the situation is required to verify the effectiveness of the measures taken and to prevent any recurrence or retaliation.
Implementing Preventive Measures
The investigation may reveal organisational dysfunctions that encourage the emergence of harassment situations. The employer must then implement corrective actions: training for managers, improving internal communication, and strengthening reporting procedures.
Raising awareness among all staff about issues of moral harassment also helps to create a more respectful working environment and to prevent new problematic situations.
Legal Risks and Employer Liability
In the event of a poorly conducted investigation or a failure to investigate, the employer is exposed to serious consequences: a finding of breach of its safety obligation, substantial damages, and harm to the company’s reputation.
Case law is particularly vigilant regarding the employer’s diligence when faced with reports of moral harassment. A rushed or biased investigation can lead to a conviction even if the acts of harassment are not established.
Legal expertise: Given the complexity of internal investigations into moral harassment, support from employment law professionals often proves indispensable to secure the process and protect the company.
Conducting an internal investigation into moral harassment requires legal expertise, a rigorous method, and scrupulous respect for the rights of all parties. DAIRIA Avocats supports you through this sensitive process, from setting up the investigation procedure to following up on corrective measures. Contact our employment law experts to secure your approach and effectively protect your company and your employees.
The Essential Clauses of the Employment Contract
The employment contract, whether open-ended (CDI) or fixed-term (CDD), forms the foundation of the working relationship. While a full-time CDI may be concluded without a written document (unless a collective agreement provides otherwise), drafting a written contract is strongly recommended to secure the relationship.
The following clauses deserve particular attention:
- Job title and classification: these determine the applicable minimum collectively-agreed wage and the employee’s rights. They must correspond to the duties actually performed (Article L.1221-1 of the French Labour Code).
- Remuneration: detail the base salary, any contractual bonuses, and benefits in kind. Any change to remuneration constitutes a modification of the contract requiring the employee’s consent.
- The probationary period: its duration is governed by Article L.1221-19 (CDI) and may not exceed 2 months for blue-collar/white-collar workers, 3 months for supervisors/technicians, and 4 months for managers (cadres). A single renewal is possible if provided for by the collective agreement and mentioned in the contract.
- The mobility clause: it must precisely define the geographical area concerned. The Cour de cassation requires that this area be determined and that it not confer discretionary power on the employer (Cass. soc., 14 February 2024, no. 22-18.456).
- The non-competition clause: to be valid, it must cumulatively be limited in time, in space, to a specific activity, and include financial consideration (Cass. soc., 10 July 2002, no. 00-45.135).
For assistance in drafting your contracts, consult our employment law experts.
The Fixed-Term Contract (CDD): Grounds for Use and Reclassification Risks
The use of the fixed-term contract is strictly governed by Articles L.1242-1 et seq. of the French Labour Code. A CDD may only be concluded for the performance of a specific and temporary task, and may not have as its object or effect the permanent filling of a job connected with the normal and permanent activity of the company.
The permitted grounds for use are exhaustively listed:
- Replacement of an absent employee or one whose contract is suspended
- Temporary increase in activity
- Seasonal or customary (d’usage) employment
- Replacement pending the arrival of an employee on a CDI
- Replacement of a company head or business operator
The maximum duration, including renewals, is in principle 18 months (subject to derogations by collective agreement). The waiting period (délai de carence) between two CDDs for the same position equals one-third of the initial contract’s duration (or half if the CDD is less than 14 days).
Failure to comply with these conditions exposes the employer to reclassification as a CDI (Article L.1245-1) and to the payment of compensation that may not be less than one month’s salary (Article L.1245-2). See our dismissal guide for the consequences of early termination.
Checklist: Securing the Drafting of an Employment Contract
- ✅ Identify the appropriate type of contract (CDI, CDD, apprenticeship contract, professionalisation contract)
- ✅ State the identity of the parties, the hiring date, the place of work, and the job classification
- ✅ Specify the applicable collective agreement and the corresponding classification
- ✅ Detail the remuneration (base salary, bonuses, benefits in kind)
- ✅ Draft the probationary period clause precisely (duration, renewal conditions)
- ✅ Verify the validity of restrictive clauses (non-competition, mobility, exclusivity)
- ✅ For a CDD: state the precise ground for use, the duration or term, and the name of the replaced employee where applicable
- ✅ Provide for the delivery of mandatory documents: DPAE (pre-hire declaration) completed, information notice on the provident/health insurance scheme
- ✅ Have the contract signed before the employee starts work (essential for the CDD, recommended for the CDI)
Frequently Asked Questions
What are the limitation periods in French employment law?
The main limitation periods are: 1 year to challenge a dismissal, 2 years for actions relating to the performance of the employment contract, 3 years for wage claims, and 5 years for moral harassment or discrimination (Article L.1471-1 of the French Labour Code).
How does a hearing before the labour court (Conseil de prud’hommes) proceed?
Proceedings before the labour court begin with a conciliation phase before the conciliation and orientation panel (BCO). In the absence of an agreement, the case is referred to the judgment panel. The procedure is oral, and the parties may be assisted or represented by a lawyer, a union defender, or a spouse.
Can the employer unilaterally change working conditions?
The employer may change working conditions (non-essential elements) within the framework of its managerial authority. However, any change to an essential element of the contract (remuneration, job classification, working hours, place of work beyond the geographical area) constitutes a modification of the contract requiring the employee’s consent (Cass. soc., 10 October 2000, no. 98-41.358).
Which documents must the employer provide at the end of the contract?
The employer must provide the employee with: the work certificate (certificat de travail, Article L.1234-19), the France Travail certificate (Article R.1234-9), the final settlement receipt (reçu pour solde de tout compte, Article L.1234-20), and a summary of all employee savings amounts. Failure to provide these causes harm giving rise to a right to damages.
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