NewsletterNewsletter No. 205 – January 2026
FREEDOM OF EXPRESSION: The exercise of freedom of expression must be assessed in light of the content of the remarks, as well as their context, scope, and impact.
In three decisions dated 14 January 2026, the French Supreme Court (Cour de Cassation) reiterated that the exercise of freedom of expression must be assessed in light of “the content of the disputed remarks, the context in which they were spoken or written, their scope and their impact within the company, as well as the negative consequences caused to the employer, and then assessing, based on these various criteria, whether the sanction imposed was necessary and proportionate to the objective pursued.” Among the facts considered by the Court was the dismissal of an employee based on his handing caricatures to the Human Resources Director, without taking into account either the context in which these events occurred, or the personal situation of the employee, who had requested adjustments to his working conditions due to his health condition. Relying on the reasoning stated above, the Cour de Cassation consequently declared the dismissal null and void (Cass. Soc. 14 January 2026, No. 23-19.947 ; Cass. Soc. 14 January 2026, No. 24-19.583 ; Cass. Soc. 14 January 2026, No. 24-13.778).
INTERNAL INVESTIGATION: In the event of a report of sexual harassment, the conduct of an internal investigation does not, in itself, constitute a legal obligation for the employer.
An employee had been dismissed for acts of sexual harassment. However, he alleged that his former employer had imposed this sanction without having previously conducted any internal investigation, thereby depriving the employer of objective elements likely to confirm the existence of the alleged facts. Yet, the Cour de Cassation reiterated “that no provision of the French Labor Code requires the employer to conduct an internal investigation in the event of a report of sexual harassment, and that it was therefore for the employer to assess the value and the scope of the evidence produced” (Cass. Soc. 14 January 2026, No. 24-19.544).
INTERNSHIP AGREEMENT: The legal duration of an internship is to be assessed globally over the academic year, and not solely based on the duration of the agreement.
In a dispute concerning successive internship agreements, the Court de Cassation held, pursuant to Article L. 124‑5 of the French Education Code, which limits the duration of an internship in the same host organization to six months per academic year, that the agreements resulting in a same intern completing “two internships with a cumulative duration of ten months, during the same academic year and within the same host organization” had to be converted into an employment contract (Cass. Soc. 7 January 2026, No. 24-12.244).
NON-COMPETE CLAUSE: A non-compete clause may be declared null and void only if its application hinders the employee’s search for employment consistent with their training and professional experience.
An employee, removed from her corporate office, brought several claims before the Labor Court, including a claim seeking the nullity of her non-compete clause. On that occasion, the Cour de Cassation reaffirmed that “a non-compete clause is lawful only if it is essential to the protection of the company’s legitimate interests, limited in time and space, takes into account the specific characteristics of the employee’s position, and includes an obligation for the employer to pay the employee financial consideration, these conditions being cumulative,” and concluded on that basis that the non-compete clause could not be declared null and void, since it had not been established “how the clause, limited to two years in the South-West region, prevented the employee concerned from finding employment consistent with her training and professional experience” (Cass. Soc. 7 January 2026, No. 24-12.597).
DISMISSAL PROCEDURE: Hand delivery of a summons letter for a preliminary meeting, even in the absence of the employee’s signature or written acknowledgment of receipt, does not affect the validity of the procedure.
An employee had been summoned to a preliminary meeting with a view to a potential dismissal by means of a letter delivered in person, but he refused to sign the acknowledgment of receipt. He attended the meeting, following which he was dismissed for misconduct. Arguing that he had not been validly summoned to the preliminary meeting, the employee challenged the legality of his dismissal. In this respect, the Cour de Cassation reiterated that delivery in person of the letter against acknowledgment of receipt “is merely a lawful means of preventing any dispute regarding the date of the summons,” and added that, since the employee did not dispute having attended the preliminary meeting, “the absence of the employee’s signature on the acknowledgment of receipt to him being irrelevant, the dismissal procedure was valid” (Cass. Soc. 21 January 2026, No. 24-16.240).
VARIABLE COMPENSATION: Modifying the basis for calculating an employee’s variable compensation requires their consent.
Following his dismissal, a Sales Director brought a claim before the Labor Court seeking payment of back pays related to his variable compensation. He argued that his employer had added new commercial accounts used in calculating that compensation without his consent, thereby reducing the bonus he was receiving. The Cour de Cassation upheld this reasoning, ruling that “the employer had added to the list used as the basis for determining the net commercial margin, accounts that were not merely extensions of existing accounts, such that this addition, which affected the variable compensation dependent on that margin, constituted a modification of the employment contract requiring the employee’s consent” (Cass. Soc. 7 January 2026, No. 24-18.742).
INTERNAL INVESTIGATION: Respect for the rights of the defense does not require that the employee have access to the file or be confronted with the employees accusing him.
An employee had been dismissed for serious misconduct following the conclusions of an internal investigation. He contested the dismissal, arguing that the employer had violated his rights of defense by not informing him of the facts alleged in the investigation report and by not hearing him during the investigation, which, according to him, infringed the adversarial principle. Conversely, the Employment Division of the Cour de Cassation reiterated that “respect for the rights of the defense and the adversarial principle does not require that, in the context of an internal investigation intended to verify the veracity of acts reported by other employees, the employee have access to the file and the documents collected, or that he be confronted with the colleagues accusing him, nor that he be heard, since the decision the employer may subsequently be led to take, or the elements on which it is based, may, where appropriate, be subsequently discussed before the trial courts” (Cass. Soc. 14 January 2026, No. 24-13.234).