Subordination and relationship of subordination : A dangerous amalgam (2/2)

Even in the absence of these extreme working conditions, any attempt to subjugate the will of the employee is punishable. Psychological harassment is a crime. The attempt to subjugate the will of an employee, even where working conditions are apparently dignified, is an offense. Thus, the following were deemed to constitute psychological harassment: repeated verbal abuse (35) or niggling threats (36), physical and verbal intimidation (37), a series of unjustified warnings or sanctions (38), isolating the employee by asking the colleague sharing the same office to stop talking to her (39) or confining an employee to a specific area to deprive him of any contact with his colleagues (40). In addition, there is an abundance of cases where the courts apply Article L 1121-1 of the Labor Code, which establishes the principle of proportionality that “No one may impose restrictions on individual and collective rights and freedoms that are not justified by the nature of the task to be performed and proportionate to the purpose pursued”, that is to say, the economic interest in respect of which the employer bears the risk. This may concern freedom of expression, of movement, of dress, or the wearing of visible religious, political or philosophical symbols. The Constitutional Council and the national and European courts are involved. To take just a few examples of the work done in this area by the national courts, it was held that the ban on hotel staff from using public parking spaces adjacent to the hotel is not a justified restriction (in this case of movement) (41), in the same way as depriving a participant in a reality show of his passport and telephone (42), or the introduction of mandatory bathroom breaks, even if justified by the nature of the task and productivity requirements (43), or the ban on purchasing a vehicle of a different make from that sold by the employer (44), the requirement that an employee interrupt a rest period to attend a company ceremony (45), requiring the employee to attend a leisure activity in which he did not wish to participate, on the occasion of a seminar held abroad (46), or using the image of an employee without his consent in internal (47) or external (48) documents. It was recently judged that management by fear, which does not necessarily meet the prerequisites of psychological harassment, may constitute a breach of the employer’s duty of prevention (49). The employer must therefore ensure that his behavior does not instill fear in his employees, who must be able to exercise their rights and freedoms with an easy mind.

The employee is a free being

Regardless of the angle of perspective, it appears that the employee is not subject to his employer. However, there are still many managers who, frightened by their own incompetence, hide behind this vision of the subordination relationship. We think of this young engineer, whose manager, also young, wanted to impose rigorous reporting procedures without explaining their purpose and who finally gave up, but made sure that his departure was recorded. The employee is a free being. The purpose of the employment contract and of the relationship of subordination in particular is not to formalize any abandonment by the employee of certain of his freedoms. By signing the employment contract the employee does not submit to his employer. Like any agreement, the employment contract creates obligations with respect to each of the parties. For example, the lessor must provide property fit for rental and the lessee must use the property in accordance with its purpose. The employer must provide the promised work, the corresponding salary, and the means necessary to perform the work. The employee must do the work and, being of good faith, must make his best efforts. The relationship of subordination is nothing other than this commitment of the employee to act in good faith, and to make his best efforts to carry out the work. If one concludes that this creates a form of submission to the employer and the abandonment of certain freedoms or of a degree of freedom, it should also be noted that the lease creates a relationship of subordination between the lessor and the lessee, whose use of the place that serves him as home or of the car he uses daily for his travels is not totally free of restrictions. The relationship of subordination is not defined by any text. It is a jurisprudential construction.

The very expression “relationship of subordination” is not defined by the Labor Code. It stems from a historical construction that no longer corresponds to social reality, to such an extent that we can legitimately question, as we saw earlier, whether it has its place in the employment contract. It would probably require reinventing an expression, with the words clarifying and forging the concepts. It could be a salaried collaboration relationship that would stand in contrast to the commercial collaboration or professional collaboration relationship. The words, however, remain associated with deeply-rooted social projections. In this service business which we assisted during a works council meeting, the consultants appointed by the management to analyze service reorganization scenarios used the term “collaborateurs” before sharing employees’ assessments of the schemes presented. The elected representatives of a trade union with an antagonistic national stance took issue with the consultants, forbidding them to use the term and requiring them to use the term “salariés” (employees). They pointed out that employees are subject to the management power of the employer, to his decisions and that one should not try to deceive them by using terminology that could give them hope of a freedom they did not have. A few days later, the same elected officials distributed a leaflet reminding employees that they were not collaborateurs.

The employee forms part of an organization

The confusion between subordination relationship and subordination or submission does not stem from certain employers only. This is regrettable. It is to forget that the employee is a citizen, an adult who is free and responsible for his actions. It is true that, depending on the economic situation and the scarcity of his skills, he may value more or less highly the contribution he makes to the company and the subsistence purpose of the salaried activity justifies that employers’ abuses should be sanctioned legally or socially. But this is the lot of all contracts and it does not create a particular position of submission. By his commitment, the employee forms part of an organization. He must be able to understand it, recognize his place, and his contribution to the stakes involved, in order to carry out his activity with full knowledge of the facts, willingly and with dignity. This is the purpose of the organization of the individual right of expression but also the right to information granted to the CSE which concerns both the company’s strategy and its operating methods. The relationship of subordination or, may we say, the relationship of salaried collaboration, is the result of a voluntary act which is the signing of the employment contract. This desire must continue for the duration of the employment contract. It is the role of management to guarantee that it persists, by ensuring that the employee is not subject to constraints that he considers illegitimate, that is to say, unjustified or disproportionate, and that his individuality, his person, is totally respected by sincere dialogue and fair relationships. In this way, there is a space for the real commitment of the employee, his constructive criticism of the organization, means, and distribution of work, within the framework of a conscientized delegation whose degree of control is defined by mutual agreement.

Jacques Uso

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35 Court of Cassation, Criminal Chamber, May 20, 2008, No. 06-86.580
36 Court of Cassation, Criminal Chamber, Apr. 1, 2008, No. 07-86,891
37 Court of Cassation, Social Chamber, June 6, 2012, No. 11-17,489
38 Court of Cassation, Social Chamber, Sept. 23, 2009, No. 08-44.062
39 Court of Cassation, Criminal Chamber, May 20, 2008, No. 07-86.603; Court of Cassation, Social Chamber, Sept. 23, 2009, No. 08-44.061
40 Court of Cassation, Social Chamber, Nov. 10, 2009, No. 07-42.793
41 Court of Cassation, Social Chamber, 1-6-1994 No. 91-40.695
42 Court of Appeal of Versailles 13-12-2011 No. 10/01826, 6th ch.
43 Industrial Tribunal of Quimper 18 -3-1996 No. 95-433
44 Court of Cassation, Social Chamber, 22-1-1992 No. 90-42.517
45 Court of Appeal of Pau 20-12-2001 no. 00-1622
46 Court of Appeal of Toulouse 21-5-1993 no. 92-3894
47 Court of Appeal of Versailles 11-5-2004 no. 03-3256
48 Court of Appeal of Grenoble 27-1-2003 no. 99-4102
49 Court of Cassation, Social Chamber, 6-12-2017 No. 16-10.885

Office et Culture n°49 septembre 2018