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Disciplining an Employee for Comments Made at Work and Violations of Fundamental Freedoms: A Difficult Balance to Strike

Published on : 06/11/2026 06 November Nov 11 2026
Newsletter / Recent Case Law
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Freedom of expression is an increasingly common theme in cases heard by the French Supreme Court (“Cour de Cassation”), and the line between what a company may and may not discipline an employee for is not easy to draw. Generally speaking, disciplining an employee for remarks made exposes the company to the risk that the employee will challenge the termination as a violation of their freedom of expression, which may lead the judges - if they rule in the employee’s favor—to declare the termination null and void and order the employee’s reinstatement.

The two cases below illustrate the delicate nature of this case-by-case assessment:

In a case dated September 9, 2026 (Cass. soc., September 9, 2026, No. 25-12.320), the case involved a disabled worker, an employee of a nonprofit organization, who had been seconded to a client company for more than six years and was subsequently terminated for serious misconduct by the nonprofit organization for abusing his freedom of expression, due to emails deemed “inappropriate” that he sent to the HR manager of that client company. The employee sought to have his dismissal declared null and void on the grounds that it infringed upon his freedom of expression. The Court of Appeals had found that the emails did indeed contain inappropriate (“your amateurism leaves me speechless”) and ironic language, as well as a barely veiled threat to make public within the client company the dispute between him and the client company. 

The Cour de Cassation overturned the Court of Appeals’ decision, noting that it is the judge’s responsibility to balance the employee’s freedom of expression against the employer’s right to protect its interests and, to do so, to assess the necessity of the measure in light of the intended purpose, as well as its appropriateness and proportionality to that objective. To do so, the judge must take into account the content of the disputed statements, the context in which they were spoken or written, their scope and impact within the company, as well as the negative consequences caused to the employer; the judge must then assess, based on these various criteria, whether the disciplinary action imposed was necessary and proportionate to the intended purpose. 

In this case, the Cour de Cassation held that the Court of Appeals should have examined the context in which the disputed emails were sent to the HR manager of the client company (the employee’s request to be included in the client company’s workforce since he had been working there for several years and his challenge to the way his hours were recorded), verify their scope and impact within the employer organization, and assess whether the disciplinary action imposed was proportionate.

In another case dated September 23, 2026 (Cass. soc. September 23, 2026, No. 25-14.347), the case involved an employee who had made particularly serious discriminatory and hateful remarks against several of the company’s employees and its executives; these remarks had significant consequences on the health of several of these employees and led to the matter being referred to the occupational physician and the launch of an internal investigation. The employee argued that while her remarks were indeed made on company premises, they occurred in the break room during a private conversation with a few colleagues and her remarks were not intended to be overheard, much less disclosed. Consequently, she argued that her termination, based in part on the content of a personal conversation (which violated her right to privacy, a fundamental freedom) was grounds for declaring the termination null and void.

The Cour de Cassation held that even though an employee has the right to privacy in the workplace, they may not make discriminatory or hateful remarks against other colleagues or members of management. Therefore, even if made in a break room, such remarks may justify dismissal on disciplinary grounds when the context removes them from the private sphere. This is the case when the remarks are made at the workplace, were heard from neighboring offices (from which the break room was separated by a very thin wall) and had an adverse effect on the health of several colleagues. These remarks are related to professional life and may be invoked to support a dismissal proceeding.

Key takeaways / practical implications: Avoid, as much as possible, dismissing an employee solely for remarks made, if those remarks are “merely” fair criticism or controversial in nature but are neither insulting nor discriminatory.
 
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