Several rulings dated 14 January 2026 clarify the possible restriction of employees’ freedom of expression. These were long anticipated, as recent rulings by the Court of Cassation created the impression that employees’ freedom of expression trumped their professional obligations.
The rule is that employees enjoy freedom of expression both inside and outside the workplace. Restrictions may only be imposed if they are justified by the nature of the task to be performed and proportionate to the aim pursued, which is a common test in French Labour law.
The dismissal of an employee for exercising their right to freedom of expression is unfair and potentially void, as it infringes on a fundamental freedom guaranteed by the Constitution.
Clarification has been provided on what to do when an employee argues in court that a sanction infringes their right to freedom of expression. In such cases, it is up to judges to weigh this right against the employer’s right to protect their interests.
To do so, judges must assess:
- the necessity of the measure in relation to the objective pursued,
- its appropriateness and proportionality to that objective.
In order to do this, judges must take into consideration:
- the content of the disputed comments and the context in which they were made or written,
- their scope and impact within the company,
- as well as the negative consequences for the employer.
Based on these various criteria, judges must assess whether the sanction imposed was necessary and proportionate to the objective pursued.
First ruling
An employer criticised an employee for several behaviours, particularly for making comments aimed at discrediting the managing director, disclosing worrying information to employees, demonstrating inappropriate management skills and requesting that the president of the employing organisation be present at the preliminary meeting prior to her dismissal. She also expressed her wish for him to hear her explanations ‘without any distortion’.
Although the Court of Appeal considered this last request to demonstrate a lack of trust in her superior, it ruled that it was not defamatory, insulting or excessive and that it was unnecessary to examine the other comments for which she was criticised. In its view, the employee’s freedom of expression had been violated, rendering her dismissal void.
However, the Court of Cassation overturned this decision, ruling that the Court of Appeal should have examined all the comments deemed wrongful by the employer, considering their context, scope, and impact within the company. The Court of Cassation also stated that the need for the dismissal should have been assessed in light of the employer’s objectives, as well as its appropriateness and proportionality.
Cass. soc., 14 January 2026, no. 24-19.583
Second ruling
An employee gave a human resources manager two drawings he had made. One of the drawings depicted a man wearing glasses throwing workers into a bin marked ‘non-recyclable’, and the human resources manager recognised himself in the drawing.
The Court of Appeal upheld the employee’s dismissal on the grounds that it was likely to damage the honour and reputation of a colleague. The Court of Appeal ruled that the employer was entitled to restrict the employee’s freedom of expression if such a restriction was justified by the nature of the task and proportionate to the aim pursued. These were deemed necessary measures to protect the health of a specific employee or, more broadly, to foster a harmonious work environment.
However, the decision was overturned. The judge should have:
- examined the context in which the two drawings were given to the human resources manager. The employee claimed that he had unsuccessfully requested an adjustment to his position due to health problems;
- verified the scope of the drawings and their impact within the company, particularly given the publicity they had received prior to the employee’s dismissal, and the actual damage to the honour of the employee who recognised himself in one of the drawings.
Cass. soc., 14 January 2026, no. 23-19.947
Third ruling
In this case, two issues were at stake for a care worker from a retirement home: aggressive behaviour towards residents and colleagues, and disagreement about the care of a resident with Alzheimer’s disease.
The employee had told the coordinating doctor and her manager that this resident did not belong in the establishment, and that she refused to care for patients with this type of disorder.
She argued that her dismissal, even if only partially motivated by the exercise of her right to freedom of expression (comments made to the doctor), should be declared null and void.
However, the Court of Cassation rejected this analysis. It ruled that the Court of Appeal had correctly balanced the employee’s freedom of expression with the employer’s legitimate interests. The Court of Cassation found that the dismissal was necessary, appropriate and proportionate given the employee’s aggressive behaviour, her refusal to carry out her duties, and the risk of abuse towards vulnerable individuals, despite the employee having received training in caring for elderly people with mental health conditions.
