Sexual harassment prescription in disciplinary matters: what is the deadline for taking action?

Faced with a suspicion of sexual harassment, the issues of responsibility for the employer are heavy. Indeed, society is under an obligation to maintaining physical and mental health of its employees. The employer must therefore react without delay as soon as a situation of sexual harassment is reported to him. If the facts are true, he must put an end to the harassment and, if necessary, punish the responsible employee, up to and including dismissal for serious misconduct by initiating disciplinary proceedings.

Unlike the criminal offence of sexual harassment, which is punishable under criminal law, the internal disciplinary procedure is mandatory much more quickly, and the employer must therefore act diligently.

Deadlines for initiating disciplinary proceedings

The employer must act quickly, as time is running out to punish the employee alleged to have committed the acts. According toitem L. 1332-4 of the Labour Code, no wrongdoing may give rise to disciplinary proceedings beyond a period of two months from the day the employer became aware of it.

After this period, in the absence of initiating the disciplinary procedure, the acts of harassment on which a dismissal for serious misconduct would be based would be considered to be prescribed. Any disciplinary sanction pronounced after this period could be cancelled by the judge. So, Respecting deadlines is a crucial issue for the employer.

Starting point for prescribing

The period of two months starts to run when the employer is fully informed of the reality of the facts alleged sexual harassment.

In some cases, the delay begins with the first report, for example via an email from a victim or witness employee, provided that the information is sufficiently detailed to allow the employer to assess the seriousness and extent of the facts (Court of Cassation, November 26, 1996, 94-40.511).

Conversely, if the employer does not immediately have sufficient information and must launch an investigation, the two-month period may begin to run. based on the report of the investigation which establishes the veracity of the facts (Paris Court of Appeal, April 2, 2019). This investigation must be conducted in good faith and impartially, otherwise the situation of harassment cannot be validly established (Versailles Court of Appeal, 17 September 2009, no. 08/02907).

Practical tips to avoid prescribing

To limit the risk that the facts will be considered as prescribed, the employer must Initiate an investigation as soon as the situation is brought to your attention, especially by email. It is crucial to secure the initiation of disciplinary proceedings within the legal period of two months.

This period allowsStart the procedure, and not to impose an immediate sanction. For example, it is a question of summoning the employee alleged to be the perpetrator to a preliminary interview, possibly accompanied by a Conservatory layoff the time of the procedure. La Date of dispatch of this invitation marks the interruption of the limitation period (CE Feb. 12 1990, RJS 1990. 1990. 243, no. 325).

The employer must also act with caution. It must react quickly without compromising the quality of the investigation, so as not to expose itself to future challenges.

The importance of quickly proving the facts

A thorough investigation, conducted without bias, is essential to confirm or deny the facts of harassment. A dismissal based on an insufficient or late investigation can be considered as without real or serious cause by the labour courts.

Case law reminds us: in the absence of an investigation or if the dismissal procedure is implemented late, the dismissal may be cancelled (Court of Cassation, 29 June 2011, 09-70.902). The collection of objective and impartial evidence is therefore a central element in securing disciplinary sanctions.

Establishing an early investigation process

To effectively manage these delicate situations, it is advisable to prepare a cold investigation process, above all recession. This involves:

• Determine the methods of collecting testimonies.
• Identify the actors involved : referent, member of the CHSCT or CSE, management representative, occupational physician, etc.
• Predict the recourse to an expert or specialized advice in the support of these situations.
• Clearly recall the Role of each actor within the procedure.

This foresight allows the employer to reconcile speed and rigor, to secure the management of sexual harassment situations and to respect legal deadlines. A structured process is therefore an indispensable tool for protecting employees and limiting legal risks for the company.