unless he proves have acted on the orders of the employer

"No one is supposed to ignore the law", said, but we all know that it is not a resident of France that has gaps in the material.

Already overwhelmed by the inflation of texts of labour and social security law, employers lose sight of the basic principles of the civil Code. Yet, it is that it is good to remember, so fort little publicized section 1135 of the civil Code: "agreements require not only to what is expressed, but all suites still equity, usage or law give the duty according to its nature.".

Applied to the contract of employment, this axiom means that employers must their employees any assistance that can be ordered fairness, even if nothing is written on the subject in the contract or the law. AXA Council case decided by the Court of cassation on October 18 give us an example of the more successful.

An agent of this famous insurance company is under a complaint filed by a disgruntled client writes false. Since it is a criminal procedure, it is the agent, natural person, that he attack, not the company, legal person, who may be implicated in this type of charge. As soon as it has knowledge of the case, the Directorate responds: it officer of his full confidence and guarantees that it will be maintained in its functions, in short, it ensures that there is no brand... moral support. Because, as soon as the agent change of registry and the possibility to be physically supported the defence in a criminal trial represents a non-negligible cost , the employer seems to be a sudden deafness. The complaint results in a non-suit and the employee, considering that his employer has been unfair towards him, captures the Industrial Court and seeks damages and interest covering the costs it incurred to defend.

The duty of good faith

The Court of appeal of Paris, in contrast to the conseil de prud'hommes, considers that the employer has made all that was expected of him. For her, the "duties of loyalty and cooperation related to the requirement of good faith" are made as the company has not disavowed his employee, does not condemned it in advance. Indeed, adds judge, the person concerned lacked appealed in calumnious denunciation against the recalcitrant client who was dragged to justice

This approach does not the Court of cassation, who rectifies in these words: "Invested by the Act, the power of direction and control of the employees under its legal subordination, the employer is required to ensure them for acts and/or they spend or perform in fulfilment of the contract of employment..." "(Cass. Soc.,. 18 oct 2006, no. 04 - 48 612).

In other words, the costs incurred by employees to defend the slanderous charges they are performing their duties are to treat as business expenses. However, it is known since a decision of 25 February 1998, confirmed by another, more resounding, January 9, 2001, that it is "principle that costs an employee warrants have exposed to the needs of his professional activity and in the interest of the employer must he be reimbursed".

They objected that the costs of defence in a criminal trial are not engaged in the interest of the employer because the company is not questioned. That is why the Court of cassation has appealed to section 1135 of the civil Code and recalls the obligation of good faith of the employer. In the release that accompanies the decision, the Court also points out that the issue can be addressed in collective bargaining and cited the example of the convention on social security practitioners, which includes a clause by which funds are committed to take to support the legal fees and litigation in action against the doctors.

Remains an issue to settle: would have told the Court of cassation if the employee had been found guilty The question is more acute today yesterday to the risk of actions by one employee against another, moral harassment. Good faith in both directions, it can be assumed that it is the employee who will the be opposed... unless he proves have acted on the orders of the employer.