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can an employer sanction an employee for what he does in private life?

Extract from a video posted on the social networks of employees of the French Brief disguised as blacks (“blackface”). (SCREENSHOT)

The case of the French Brief, three people from this textile company are having a small private party in an apartment. Two are employed by the company. The theme of the evening: “Viva Africa”. To the music of Yannick Noah, a woman shows her face painted black – a “blackface” – and another, whom we see walking on all fours, wears a gorilla mask and utters monkey cries. Problem, the video is posted on social networks. Over two million views on Twitter. Uproar, accusations of racism, Le Slip français reacted immediately and published a press release. The company announces that the two employees have been summoned, sanctioned and laid off as a precaution.

Does this mean that you can be punished by your employer for things you do in the private sphere? The answer is not simple. The principle is no. There is an article of the labor code which is very clear on this point. It protects the individual freedoms of employees who can do what they want in their private life. An example from real life: an employee of Renault, even a manager, cannot be dismissed because they buy a Peugeot. A bank employee cannot be fired because he is in constant debt.

In the video case, at no time did the employees of the French Brief speak of their employer in the video, they did not act as representatives of the firm, they did not speak on its behalf. So there can be no sanction.

Except that in reality, it is less simple, because the company can argue that such behavior creates a disturbance in the operation of the company. And an attack on his image. This is especially retained when it comes to an important person in the company. You may remember that designer John Galliano was dismissed by Dior in 2011 for launching anti-Semitic insults on the terrace of a Parisian cafe. It was private, but it damaged the company's image.

In certain cases, one can therefore dismiss an employee for his private behavior. It will not be a dismissal for fault because there is no professional misconduct, but an individual dismissal, with termination indemnities, notice and compensatory indemnity for paid holidays. And most certainly, if that were to be the case, a challenge before the industrial tribunal. What we would not fail to follow.

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