Freedom of expression: Judges must take into account specific factors when deciding if an employee has abused their right to freedom of expression

On 9 September 2026, the French Court of Cassation reiterated the rules it had set down in January 2026 regarding the methodology the lower courts needed to follow when examining whether an employee could be sanctioned based on a potential abuse of their freedom of expression.

 

In January 2026, the French Court of Cassation set out, via two rulings, the methodology which judges must use to decide if an employee could be sanctioned on the grounds that they had abused their right to freedom of expression.

Specifically, the courts had to consider whether such a sanction was necessary, appropriate and proportionate to ensure the protection of the employer’s interests by examining the words used, the context in which such words were said or written, the number of people to whom they were addressed, their impact and consequences for the employer.

This case concerned a disabled employee who had been sent by a sheltered employment organisation to work for a client for more than 6 years and who was dismissed for serious misconduct on the grounds that the content of his emails to the client’s human resources director had been extremely rude.

The French Supreme Court considered that the Court of Appeal had not considered the circumstances in which such words were used, including the fact that the employee was claiming that he should be hired by the company in question due to the fact that his being “hired out” in this way was against the law (which the Court of Appeal had recognised).

 

Key Action Points for Human Resources and In-house Counsel

Seek legal advice before deciding to dismiss employees on the grounds of what they have said or written.