Sexist comments on a Facebook group may constitute grounds for serious cause

The Facts

A man works in a factory as a quality controller. He is a candidate for the social elections for the Health and Safety Committee (« CCPT ») and is thus protected against dismissal.

The company organizes a ceremony to mark the restart of a production line, during which photos are taken, including of two female workers. These pictures are published on a private Facebook group with several hundred members, most of whom are current or former workers of the company.

In comments on these publications, the worker makes sexist remarks. The facts were brought to the attention of the company management, who decides to summon the worker. The latter acknowledged the facts. Consequently, the company starts the procedure for the recognition of the serious cause as grounds for dismissal.

The case is brought before the Labour Court of Liège.

Labour Court decision

The Court acknowledges that the worker had made sexist comments, indicating a form of sexual arousal towards fellow workers, on a group of several hundred potential readers.

Despite the fact that they were published on a "private" group, not accessible to everyone, the Court considered that the comments were "public", given the large number of members, and the very diverse public, most of whom were unknown to the worker in question.

The Court analyzes the employee's misconduct in the light of his right to freedom of expression. It recalls that the freedom of expression is not absolute, in particular in the context of the employment relationship. This freedom is restricted by the worker's obligation to respect his colleagues and to refrain from anything that could harm the safety of his colleagues (a concept that must be assessed in a broad manner).

The Court considers that in the present case the worker has failed to comply with these two obligations and exceeded his right to freedom of expression.

The facts are serious according to the Court, especially given (among other things):

• The written and permanent nature of the comments, their offensive and humiliating nature and the fact that the targeted female workers were clearly identified and identifiable;
• The absence of any humorous feature.

In the light of these elements, the Court recognizes and authorizes the dismissal for serious cause of the protected worker.

What to remember?

If an employee makes sexist and disrespectful comments about a female colleague on a Facebook group (even a "private" one), this may constitute grounds for serious cause.

Freedom of expression is not absolute, especially in the context of the employment relationship. If an employee makes comments that are disrespectful or harmful to the health or well-being of a co-worker, the employee is overstepping the bounds of freedom of expression.

Source: Cour du travail de Liège, division Namur, 25 May 2021, R.G. n°2021/AN/54, unpublished.