Is the disciplinary power of the employer becoming anachronistic ?

The exercise of disciplinary power is delicate and sometimes fraught with consequences, whether they be litigation or social tensions, which, in addition to their economic cost, often have a significant social cost. Only a real disciplinary policy, with a clear and shared purpose, can contribute to the smooth running of the company, whatever its managerial model.

The subordination relationship, which determines the existence of an employment contract, is characterised by “the performance of work under the authority of an employer who has the power to issue orders and directives, to supervise their execution and to sanction the failings of the subordinate”1. In order to determine whether the employment relationship is part of a relationship of subordination, judges assess the economic risk, material working conditions and the real authority of the employer.

The economic risk entails, on the one hand, assuming liability for the various costs and expenses associated with carrying on the activity and losses in case of insufficient activity or unpaid amounts and, on the other hand, reaping the profits generated by the activity. In application of this criterion, the following were all considered to have the status of employee because they assumed no economic risk: a dental surgeon replacing a colleague in exchange for a fee not proportional to the fees received, a pharmacist replacing a colleague and receiving a lump-sum remuneration, or agents who “did not assume any economic risk, their activity being monitored according to a monitoring schedule, with the payment securities being cashed by the company”2. Since he assumes the economic risk, the employer can legitimately determine the material working conditions that he deems the most appropriate. This may include the place of work, working hours and schedules, as well as work organisation, procedures and tools.

These restrictions on the freedom of a party constitute a second criterion for the existence of a relationship of subordination, which has led the judges to rule that the following persons came under the general social security scheme: a tennis instructor who gave lessons according to schedules fixed by the club, a professional athlete forced to respond to any summons from the employer or a driver who, although the owner of his truck, is compelled to abide by the regulations issued by the company with which he has a contract, which has extensive powers over the manner in which the work of the person concerned is carried out3. This last example illustrates the third criterion taken into account by judges, who look at whether the client exercises real authority over the party concerned.

Thus, the following employment relationships were judged to come under an employment contract: the situation of the employees of an automobile test and repair company who cannot choose their customers or services and who carry out their duties under the authority, control and direction of the company manager, or that of occasional billposters for a company that unilaterally determined their working conditions and remuneration and where they worked according to the general guidelines imposed as to the number of posters to be placed and the distribution frequency, or that of “agents” who worked on the basis of a technical file compiled by the company, their activity being controlled according to a monitoring schedule and the company having in their regard a power of sanction “consisting in deciding not to award any further missions”, or finally that of commercial agents who worked exclusively for one company, and who were required to provide weekly activity reports, to assist in all surveys, visits and prospecting actions that the company decided to organise, and to adhere to the tariffs fixed by the company, which, moreover, determined the scale for calculating their monthly commissions4.

The law grants the employer disciplinary power in return for the economic risk he assumes.

The law grants the employer disciplinary power in return for the economic risk he assumes. However, Article L. 1331-1 of the Labour Code states: “any non-verbal action taken by the employer as a result of an act he considers to be improper constitutes a sanction”. The Labour Code thus establishes the principle of disciplinary power but without defining what is covered by the notion of “an improper act”, which is left to the discretion of the employer, the same person who exercises disciplinary power. The employer is therefore allowed to sanction the employee, but without any reference as to the cause of this sanction, and without being able to rely on a definition of the improper act. The scope of the disciplinary power is however very broad. Since the employment contract must be performed “in good faith” like any agreement (Civil Code, art. 1104), the employee is bound by an obligation of loyalty that prohibits him from engaging in acts detrimental to the interests of the undertaking.

In particular, he is bound by obligations of fidelity and discretion. It is therefore legitimate to sanction an employee who does not fulfil this obligation in good faith. When he is part of a community, the employee has a duty of correction with regard to both his colleagues and his superiors. Physical or verbal acts of violence are therefore punishable. In addition, Article L. 4122-1 of the Labour Code imposes on the employee an obligation to ensure his own safety and that of his colleagues. Any conduct contrary to this general safety requirement will constitute a fault.

The employee agrees to perform the agreed work

In addition, having accepted the legal relationship of subordination with respect to the company, the employee agrees to perform the agreed work, in accordance with the employer’s instructions and the constraints imposed by his membership of an organisation and a work community.

The employer may legitimately sanction an employee who does not honour this commitment which characterises the employment contract.

The failure to comply with the working hours defined by the employer or the duration of work fixed in the employment contract, the refusal to work overtime, or, generally, the failure to fulfil the obligations arising from the undertaking’s internal regulations will be punishable by a sanction. The same will apply if the employee refuses to perform the duties associated with his job and title or refuses to perform new tasks in connection with his title5, which is tantamount to a simple change in work conditions that comes under the employer’s power of management6, for which an employee may not make his acceptance conditional upon a salary increase7.

The scope of the employer’s disciplinary power is very broad

The scope of the employer’s disciplinary power is very broad, but the latter must take care to avoid any subjective assessment.It follows that loss of trust can never in itself constitute a cause for dismissal, even if it is based on objective factors. Only these objective elements may constitute a cause of dismissal, but not the resulting loss of confidence8. In the same vein, the incompatibility of temperament with the management or colleagues, or “relational difficulties” cannot constitute in themselves a real and serious cause of dismissal9. Only the disruption suffered by staff members and clientele10 constitutes a fault, being specified that in the event of a conflict between employees likely to jeopardise the operation of business, the employer is the sole judge of which employee to dismiss11. Ultimately, disciplinary power is designed to protect the organisation and the tools made available by the employer in order to manage economic risk as effectively as possible. It is also designed to protect the community the employer has built up around him, which must be able to perform its services in safety and serenity, by maintaining a certain social intelligence. Finally, it aims to compel the employee to respect his contractual commitments and to perform the service for which he has joined the company.

However, the employee is not subject to unlimited power

The employer may resort to disciplinary power in a field the extent of which determines the strength of the relationship of subordination. However, the employee is not subject to unlimited power. It has thus been judged that it is up to the employee “to refuse to associate himself with the actions committed to the detriment of the undertaking by a superior, even if he receives an order from the latter”12.

The employee therefore has the freedom to evaluate the obligation to follow the instructions given by his employer, even though the activities resulting therefrom come under his job title. He also has the freedom to evaluate the behaviour of his employer and cannot be punished for denouncing acts that appear reprehensible to him. Law 2016-1691 defines a whistle-blower as “a natural person who discloses or reports, disinterestedly and in good faith, a crime or misdemeanour, a serious and manifest violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organisation made on the basis of such a commitment, of the law or regulations, or a serious threat or injury to the general interest, of which he became personally aware”.

Article L. 1132-3-3 of the Labour Code, which organises whistle-blower protection, states: “(…) no employee may be penalised (…) for having sounded the alarm in accordance with Articles 6 to 8 of Law No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life”.

The disciplinary power of the employer is also limited by the individual and collective freedoms of his employees.

The disciplinary power of the employer is also limited by the individual and collective freedoms of his employees. As a general rule, the employee may engage in whatever activities he wishes in his private life, and a sanction may be imposed, taking into account the nature of his duties and the purpose of the company, only if the behaviour in question is likely to create a manifest disorder within the company13. It was therefore held that it was not a fault for a medical secretary to continue to work as a “clairvoyant”, despite the employer’s request to stop because of her access to confidential files14.

Even if the behaviour of the employee in his private life prevented him from performing his duties, such as the withdrawal of a driver’s license necessary for his work, he could not be subject to a disciplinary measure, but rather to dismissal for personal reasons15. The result is that disciplinary power cannot be used to induce the employee to adjust his private life to the requirements of the company, however well founded they may be. In the end, the behaviour of an employee outside his working hours can only justify a disciplinary sanction if it constitutes a breach of an obligation arising from the employment contract16.

Court of Cassation, Social Chamber, Nov. 13, 1996, No. 94-13.187
Court of Cassation, Social Chamber, Nov. 4, 1987, No. 85-18,421, Court of Cassation, Social Chamber, Oct. 5, 1989, No. 86-15,574, Court of Cassation, 2nd Civil Chamber, Dec. 13, 2005, No. 04-18. 104
Court of Cassation, Social Chamber, Oct. 10, 1991, No. 87-14,878, Court of Cassation, Social Chamber, June 14, 1979, No. 77-41.305, Court of Cassation, Social Chamber, Dec. 3, 1986, No. 84-12.546
Court of Cassation, Social Chamber, Dec. 20, 1983, No. 82-14.502, Court of Cassation, Social Chamber, May 22, 1997, No. 99-15,455, Court of Cassation, 2nd Civil Chamber, Dec. 13, 2005, No. 04-18.104, Court of Cassation, Social Chamber, Nov. 23, 2000, No. 99-10. 722
Court of Cassation, Social Chamber, June 15, 1989, No. 88-40,581; Court of Cassation, Social Chamber, Oct. 16, 1996, No. 94-45,593
Court of Cassation, Social Chamber, May 10, 1999, No. 96-45,673; Court of Cassation, Social Chamber, Oct. 10, 2000, No. 98-41,358
Court of Cassation, Social Chamber, Oct. 8, 1980, No. 79-40,442
Court of Cassation, Social Chamber, March 31, 2004, No. 02-40.993
Court of Cassation, Social Chamber, Jan. 17, 2001, No. 98-44.354, Court of Cassation, Social Chamber, June 25, 1997, No. 95-42,451
Court of Cassation, Social Chamber, Apr. 2, 2003, No. 01-42.294
Court of Cassation, Social Chamber, June 19, 1985, No. 82-40,760
Court of Cassation, Social Chamber, May 22, 1975, No. 74-40,454; Court of Cassation, Criminal Chamber, June 26, 2002, No. 01-87.316
Court of Cassation, Social Chamber, Jan. 22, 1992, No. 90-42.517
Court of Cassation, Social Chamber, Oct. 21, 2003, No. 00-45.291
Court of Cassation, Social Chamber, May 3, 2011, No. 09-67,464; Court of Cassation, Social Chamber, July 10, 2013, No. 12-16.878
Court of Cassation, Social Chamber, Oct. 8, 2014, No. 13-16,793; Court of Cassation, Social Chamber, March 27, 2012, No. 10-19,915