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Analysis & trends
When corporate policy warps into a criminal offence: French Supreme Court recognizes concept of institutional psychological harassment
In a ruling handed down on January 21, 2025, the Criminal Division of the French Supreme Court enshrined the concept of institutional psychological harassment in French law, confirming that a company and its managers can be held criminally liable when they knowingly implement a corporate policy whose purpose or effect is to worsen the employees’ working conditions (Supreme Court, Criminal Div., January 21, 2025, no. 22-87.145, FS-B+R).
1. Particular context of the case
Between 2006 and 2008, several managers of a major telecommunications company implemented a restructuring policy, characterized by major staff cuts and a transformation of working methods. This strategy led to a climate of tension within the company and a tragic wave of suicides among the employees ensued.
The company and a number of its managers, notably within the Human Resources Department, were prosecuted on grounds of psychological harassment in the workplace before the criminal courts. They were found guilty of institutional psychological harassment on the basis of Article 222-33-2 of the Criminal Code punishing psychological harassment (Paris Judicial Court, December 20, 2019, no. 09357090257; Paris Court of Appeal, September 30, 2022, no. 20/05346).
2. Establishment of notion of institutional psychological harassment
Following an appeal by some of the convicted executives, the Criminal Division of the French Supreme Court upheld their conviction and endorsed the notion of institutional psychological harassment in a comprehensively well-reasoned ruling dated January 21, 2025.
It considers that the offence of psychological harassment can be committed by “knowingly deciding on and implementing a company policy whose aim is to cause a deterioration of the working conditions of all or some of the employees in order to reduce the workforce or achieve any other managerial, economic or financial objective, or which results in such deterioration, likely to infringe the rights and dignity of these employees, to alter their physical or mental health or to compromise their professional future” (§41)[1].
Furthermore, the French Supreme Court considers that this interpretation of the law was foreseeable, and so, it is intended to apply immediately to situations predating this decision, without this being contrary to the stipulations of Article 7 of the European Convention on Human Rights (§49 to 60).
The French Supreme Court thus enshrines the concept of institutional psychological harassment, as retained and defined by the trial and appeal judges in this landmark case[2], holding that it was legitimate for the courts to “determine whether [the method used to implement the corporate policy] exceeds the normal power of management and control of the head of the company” (§70).
In practice, the French Supreme Court’s ruling means that psychological harassment can be deemed to have occurred even in the absence of any individual targeting of one or more employees, or any interpersonal relationship with the manager being sued, provided the managerial policy implemented has had deleterious effects on the working conditions of the employee(s) affected.
As a result, it is no longer necessary to establish a direct and personal link between the conduct of which the manager is accused and the employee victims, “provided the latter are part of the same work community and were likely to suffer or have suffered the consequences” of the managerial policy in question (§40).
To substantiate this –extensive– interpretation of the offence of harassment, the Court relies not on the parliamentary works as such, but on opinions merely mentioned within those works[3], which, according to the High Court, demonstrate the legislator’s desire to give the offence the “broadest and most consensual definition possible” (§39).
Clever as it may be, this reasoning is questionable, as the legislator does not necessarily intend to endorse all the third-party opinions to which he/she simply refers as part of the legislative process.
In the final analysis, it will be up to the trial judges who hear criminal cases on this basis to apply the concept of institutional psychological harassment with all due rigor. However, it should be noted that it is now possible to incriminate not only corporate policies whose “purpose” is to worsen working conditions, but also those whose “effect” is to worsen them.
However, company managers are frequently faced with situations in which they are forced –sometimes against their better judgment– to make decisions that undoubtedly have the “effect” of worsening the working conditions of their employees: the criminal risk now incurred in this context calls for heightened vigilance.
3. Practical consequences for companies: the need for heightened vigilance
While the French Supreme Court does not call into question the employer’s power of management in defining corporate policy, nor the intrinsic legitimacy of the decisions it may entail (reorganizations, restructuring operations, mergers, etc.), the enshrinement of institutional psychological harassment calls for heightened vigilance in the definition and implementation of corporate policies, in order to limit as far as possible their impact on the employees’ working conditions, and to prevent these decisions from inducing a climate of systemic suffering.
As with any issue of psychological harassment, the company and its management must be able to objectively justify the choices made, in order to demonstrate that they were part of the legitimate exercise of the employer’s powers of management and control, and thus combat any criticism suggesting that they were knowingly aimed at worsening the working conditions of the employees concerned.
As the prevention of psychosocial risks and the provision of support measures for employees are already mandatory, particularly in the event of projects impacting their working conditions (downsizing, reorganization of services, etc.), this ruling calls for even greater vigilance on these issues.
Enhanced social dialogue could also be a way of limiting legal risks, especially as trade unions and staff representatives will now have a new lever under criminal law at their disposal to curb policies they oppose.
Lastly, it should be borne in mind that, as described in the decision, the facts having led to this decision were particularly topical for the recognition of the notion of institutional psychological harassment.
In light of the concerned company’s state-owned status, with an important number of civil servants for whom collective redundancy was not an option, the company’s human resources policy was described as resulting in pressure to control departures and condition the hierarchy to the objective of reducing headcount.
Hence, while the precautions recommended above will never guarantee the absence of any criminal risk, they will at least make it possible to provide a distinguishing argument compared to the specific factual situation that led to this recognition of institutional psychological harassment.
