Is the disciplinary power of the employer becoming anachronistic ?

The power of management, and the relationship of subordination, stop at the limits of private life.

The power of management, and the relationship of subordination, stop at the limits of private life. The same is true of correspondence. A dismissal may not be based on the content of personal messages simply because they were sent to the employee or sent by him using a computer made available to him in a professional capacity17. According to the same principle of the right to a private life, the discovery of erotic pictures in the drawer of an employee’s office does not authorise the employer to carry out, without the knowledge of the interested party, a search on the hard disk of his computer and to open a file marked as personal18.

This private-life behaviour does not in itself justify a sanction. Conversely, an intrusion into the employee’s private sphere may be justified if the employee’s behaviour, given the nature of his duties and the company’s specific purpose, creates or threatens to create a manifest disorder within the company. It follows that an employer with legitimate reasons to suspect acts of unfair competition on the part of the employee can obtain from the District Court an order authorising a bailiff to access the data contained in the computer supplied by the company to the employee and to examine, in the presence of the employee, electronic messages exchanged by the interested party with two persons from outside the company19.

The employee is free to choose where he lives. Consequently, the employee’s refusal to transfer his place of residence to his place of assignment is not sufficient to justify the dismissal, whereas there is nothing to suggest that the transfer was essential for the undertaking20. Similarly, the Court of Cassation considers that a contractual clause cannot require a salaried lawyer to move to the locality of the firm that employs him for the sole purpose of good integration into the local environment21.

Thus, a large body of case-law applies Article L 1121-1 of the Labour Code which establishes the principle of proportionality according to which restrictions on individual liberties may be imposed, and therefore their refusal sanctioned, if they are justified by the nature of the task to be performed and proportionate to the aim pursued, that is to say, to the economic interest of which the employer bears the risk.

Other examples include the freedom of expression, of dress, or the wearing of visible religious, political or philosophical signs. The Constitutional Council and the national and European courts are all involved.

It involves determining the fragile balance between the disciplinary power of the employer and the freedom of action of employees.

The task is a delicate one, since it involves determining the fragile balance between the disciplinary power of the employer and the freedom of action of employees. It is an important one because ultimately it is a question of organising a collaborative relationship between the power of management and individual and collective freedoms. Disciplinary power, under the supervision of the Judge, is thus intended to maintain the right balance between, on the one hand, the requirement of direction essential to the control of the economic risk assumed by the company, its shareholders or the community, and on the other, the freedoms of the people who have agreed, by contract, to work within it.

The purpose of disciplinary power is therefore not to punish a defaulting employee. It has merit only because of its pedagogical character for the working community. In this sense, its exercise can contribute to reinforcing the commitment of employees and paradoxically to reduce antagonisms.

The concept of the liberated company echoes MacGregor’s X and Y theory of the 1960s.

The concept of the liberated company echoes MacGregor’s X and Y theory of the 1960s. Theory X is based on the assumption that employees are not motivated by work and that consequently they must be forced to produce by appropriate measures and sanctions.

In this context the exercise of disciplinary power reinforces antagonisms. With Theory Y, employees are motivated by their task and aspire to new responsibilities. The idea is merely to assist them in their development and not to constrain them. The writings on the liberated enterprise favour Theory Y by a liberating style of leadership which should facilitate change management by reducing resistance.

This style of management is based on respect for the employee, his skills and his ability to develop, in a culture that promotes the autonomy of each person. The exercise of disciplinary power could therefore seem anachronistic. However, the liberated enterprise can only be envisaged if the relations between individuals and between the employees and the company are loyal and sincere, in accordance with Article L 1222-1 of the Labour Code, which stipulates that the employment contract must be performed in good faith.

Thus, in the context of a liberated enterprise disciplinary power has to be exercised too.

Thus, in the context of a liberated enterprise disciplinary power has to be exercised too. It aims to protect the fundamentals deemed necessary by the employer to best assume the economic risk, which consists in developing the autonomy of his employees, aware of the impact of their decisions and actions. The relationship of subordination therefore persists even in the managerial relationships to which the concept of liberated enterprise refers. It follows that the relationship of subordination is not a relationship of submission but one of collaboration, reciprocal one might be tempted to add, despite the pleonasm. Whatever the company’s degree of social and managerial maturity, between Fordism and the liberated company, the management faced with a fault of one of its employees may be forced to exercise its disciplinary power to protect loyal and sincere professional relations.

This purpose concerns the entire working community, with the exercise of disciplinary power being designed to protect it. It is then a disciplinary policy shared with the working community, in contrast to the expression of a power forcing the employees into submission.

The limits that are sanctioned must be known to employees

To contribute to developing responsible and collaborative relationships, disciplinary policy must follow a few simple principles that we observe to varying degrees in the companies we assist, according to their social history and that of their managers in office. The first of these principles: the limits that are sanctioned must be known to employees. Fairness dictates it. When management decides to sanction behaviour that was tacitly accepted in the past (this happens frequently) it is essential to ensure that this change has been clearly announced beforehand. Second, the limits can only concern objective facts and not a moral judgement or a subjective view of the managers.

Third, excluding dismissal due to the extreme seriousness of the behaviour or its persistence, we find the will of the management to ensure that the work relationship returns to a genuine collaboration in good faith. The sanction is not an end in itself but rather a step towards a consolidation of the professional relationship which has deteriorated despite one or more past warnings.

Management interventions must be controlled, which requires a strong and consistent managerial line in terms of disciplinary policy.

In this sense, management interventions must be controlled, which requires a strong and consistent managerial line in terms of disciplinary policy. It has been judged that a change of posting owing to the employee’s absences and the fact that he was not fully performing his duties constitutes a disciplinary sanction22. The same applies to the procedure for requesting written explanations, which is a restrictive procedure, if it is implemented as a result of acts deemed improper by the employer23, or a letter by which the employer makes a number of complaints to the employee, and urges him to make a radical change, with a review at a later date24.
Conversely, the following do not qualify as sanction: a call to order, a letter asking the employee to abide by the internal procedure applicable toa modification of the staff timetable, a letter asking the employee to “make an effort to pull himself together under pain of future sanctions in the event of repeat offences”, or a letter reminding the employee of the obligation of loyalty attached to his status as a travelling salesperson25. One of these warnings, accompanied if necessary by a support plan for the employee, makes it possible, in most situations, to restore the professional relationship.

It is also an opportunity to ensure that the employee has the means, knowledge and experience necessary to perform his duties properly. In line with this managerial vision and aimed at protecting the work community, the proposed disciplinary sanction can be announced to staff representatives within the framework of formal or informal exchanges. Illuminating them about the situation and the person concerned supplements the information essential to a complex decision which, if it leads to a sanction, will be understood and accepted by the work community, and the Judge, because of its fairness. With this approach, the need to impose a sanction will become rarer. Disciplinary power remains present, however, like the look-out post of a serene and committed work community, which worries, from its beginnings, about excesses which could harm the common good. Perhaps it is no longer a question here of sanctioning a breach of “discipline”. In the context of a more systemic vision, another vocabulary should probably be validated concerning the modification of the professional relationship.

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