France: After the expansion of burnout claims, should employers worry about “bore-out” claims?

Contents of the recent Paris Court of appeals’ decision

Hired in 2006 as “office manager”, the plaintiff claimed that the company had set him aside as of 2010: deprived of real duties corresponding to his academic qualifications and to his job description, the plaintiff claimed that he had only been assigned low-level activities as a private concierge. According to the plaintiff, such repeated actions and lack of real assignment had deteriorated his working conditions and his health, ultimately leading to an epileptic seizure and severe nervous breakdown. The employee, who had been on sick leave since March 2014, was ultimately dismissed on September 2014 due to the negative impact of his prolonged absence.

In order to prove the existence of bore out, the employee relied on several employees’ affidavits as well as medical certificates which evidenced his being set aside and the consequences of the employer’s behaviour on his health. 

In response, the company denied the employee’s allegations and highlighted that he had never complained about his working conditions, either verbally or in writing, before bringing the matter before the Employment Tribunal. 

The Paris Court of Appeals considered, though without using the term “bore out”, that the absence of work established the existence of moral harassment, defined as “repeated acts which have the purpose or effect of deterioration his working conditions, and which are likely to violate his rights and dignity, impair his physical or mental health or jeopardise his professional future”. The Court further stated that the employer failed to challenge the existence of moral harassment.

The Paris Court of appeals therefore recognised that the employee’s dismissal was related to his moral harassment, which made the dismissal null and void. The Court sentenced the company to pay € 35,000 as damages for null and void dismissal (9 months’ salary), and € 5,000 as additional damages for moral harassment.

An increasing use of the bore-out syndrome

While there has been a recent rise of the use of “bore-out” in employees’ claims before the employment tribunals (Aix-en-Provence Court of appeals, 24 June 2016, n°13-20.777; Versailles Court of appeals, 20 September 2018, n°16-04.909; Orléans Court of appeals, 16 July 2019, n°16-02.412;  Aix-en-Provence Court of appeals, 24 January 2020, n°17-01.399), the French Supreme Court has not yet ruled on this concept. Such increase surely goes hand-in-hand with that of burnout – qualified by the World Health Organisation as an “occupational phenomenon” and not as a medical condition. In France, several draft bills aiming to facilitate the recognition of burnout as an occupational disease have failed to go through Parliament in recent years.

However, beyond the absence of recognition of burnout or bore-out as an occupational disease, employees are still able to challenge their dismissal and obtain damages in case of bore out.

In this respect, the Paris Court of Appeals’ ruling, which has contributed to the publicity of bore-out syndrome, is in line with previous decisions from the French Supreme Court. These decisions consistently remind that the employer (i) must provide work to its employees and that (ii) such work must correspond to the employees’ contractual role. Breach of these obligations may lead to the recognition of moral harassment from the employer (French Supreme Court, social chamber, 29 June 2005, n°03-44.055; French Supreme Court, social chamber, 24 January 2006, n°03-44.889).

The criminal chamber of the French Supreme Court has also confirmed that the insufficiency of work provided and the exclusion of an employee may qualify moral harassment (French Supreme Court, criminal chamber, 14 May 2013, n°12-82.362; French Supreme Court, criminal chamber, 26 January 2016, n°14-80.455). Moral harassment, indeed, is also a criminal offense punishable by two-year imprisonment and a fine of a maximum of € 30,000 for the legal representative of the company, and a fine of a maximum of € 150,000 for the company itself.

How to prevent bore-out syndrome

In order to prevent moral harassment, and, more specifically, bore out syndrome, we recommend the following practical measures:

• When hiring an employee, make sure the job description is detailed and accurate – while allowing room for amending it unilaterally, within the limits set by French law (i.e. duties that correspond to the employee’s qualifications and do not change his/her compensation and job title);
• A mandatory professional meeting must be organized every 2 years by the employer, in order to support the employee in his/her professional development perspectives and identify his/her training needs. This meeting can usefully be held once a year;
• Keep a written record of the content of the meeting, signed by both parties;
• In case of suspected impact on an employee’s moral health, be proactive. Contact the staff representatives and/or the occupational doctor to ask for their advice on the situation confidentially;
• Encourage transparent communication and “speak up” policies, and create an open working environment where employees feel secure enough to speak up if confronted with or witnessing bore out.

When reorganising departments or businesses, be mindful of depriving work from employees, which may lead to constructive dismissal claims.