Page 51 - MONACO LAW REVIEW 2025-2

MONACO LAW REVIEW | DECEMBER 2025 | COURTROOM INSIGHTS
harassment occurred if the judgment shows that neither the
facts alleged against the employee nor the accusations made
against her supervisor were established18
.
Furthermore, harassment must be suffered, not consented
to: there is therefore a clear distinction between sexual
harassment and reciprocal familiarity between employer and
employee19. It is also worth noting that the civil fi ne provided
for in Article 10 of Law No. 1.457 — applicable where
allegations of harassment are made solely with the intention
of harming the employer — has never yet been imposed20
.
II. Implementation of Law No. 1.457: Further
Clarifi cations Provided by the Case Law
1. Temporal scope of the Law and proceedings before the
Labour Court
Acts predating Law No. 1.457: harassment does not escape
sanction. Must acts of harassment committed before the entry
into force of the Law go unsanctioned on the ground that the
statute has no retroactive effect? The case law answers in the
negative. Where some of the conduct took place before the
Law was adopted and the harassment continued thereafter,
the courts rely on the statutory defi nition of harassment,
which presupposes repeated behaviour over time, to conduct
a comprehensive assessment of the pattern of harassment21
.
And even where all the acts predate the Law, the courts turn
to general legal principles, such as the employer’s duty of
good faith (Article 989 of the Civil Code)22, the employer’s
duty to protect employees23, or vicarious liability where the
harassment originates from another employee (Article 1231,
paragraph 4, of the Civil Code)24. It should further be noted
that the Labour Court applies, even to earlier conduct, the
system easing the burden of proof in favour of the victim
of harassment, relying on the judicial presumptions set out
in Article 1200 of the Civil Code25. Moreover, the limitation
period begins to run from the last act of harassment26
.
No conciliation in cases of harassment: an exceptional rule,
not capable of extension. As a rule, all claims brought before
the Labour Court must undergo a mandatory conciliation
stage. This requirement does not apply to claims involving
harassment. The legislature created an exception to that
principle, as “an attempt at conciliation appears ill-suited to the
nature of the dispute”27. Accordingly, unless the victim expressly
wishes to maintain the conciliation stage, the claim is brought
directly before the Trial Panel of the Labour Court (Article
8 of the Law). The Labour Court, however, emphasises that
this exceptional rule is not capable of extension: it cannot be
applied to claims unrelated to harassment. Claims seeking to
bring the hiring date into conformity with the actual start of
employment, together with claims relating to the calculation
of salary and corresponding allowances or commissions,
must therefore still be referred to mandatory conciliation28
.
Furthermore, this special procedural rule, which had no
statutory basis prior to the new Law, cannot be applied to
facts predating 201729
.
2. Employer’s obligations and consequences of harassment
Scope and limits of the employer’s duties.
Employers must take all necessary measures to bring an
end to any situation of harassment of which they are aware
(Article 5, paragraph 1, of the Law). Conducting an internal
investigation and seeking further information from the
victim are ways in which the employer may fulfi l this duty30
,
provided that the investigation is genuine, diligent, and
impartial31. Where the investigation confi rms the harassment,
the employer may dismiss the perpetrator for gross
misconduct, subject to the prior verifi cation of the facts32. The
employer may also consider reassigning the victim to another
position in order to ensure her protection33. In all cases, an
employer who is aware of a situation of harassment must
monitor how the situation evolves34; the employer cannot
remain passive, even where the perpetrator is a third party
(such as a client)35. Establishing the employer’s liability
nevertheless requires demonstrating that the employer knew
of the situation of harassment or ought to have known of it36
.
Full compensation of the harm suffered and nullity
of measures taken against victims. Once harassment is
established, the victim is entitled to full compensation for the
harm suffered, which may reach signifi cant amounts (up to
EUR 100,000 in damages37). Moreover, any measure affecting
an employee’s career progression and any disciplinary
sanction imposed on an employee for having suffered or
refused to suffer harassment are null and void (Article 3 of
the Law). Accordingly, the dismissal of an employee, where
it directly results from the harassment endured and from
the employee’s legitimate reaction (refusal to submit to the
conduct, followed by sick leave for depression), must be set
aside38. Even where the dismissal is void, the employment
relationship has nonetheless come to an end through the
employer’s sole fault. The employment contract is therefore
terminated by a court decision at the employer’s expense,
entitling the employee to all termination-related payments39
.
By contrast, a dismissal remains valid where it bears no
connection with the harassment and rests on a legitimate and
independent ground (such as an economic reason)40
.
DL
18| Labour Court, 23 March 2017, Ms K. Gr. v. SAM A.
19| Labour Court, 28 February 2019, Ms M. T. v. SAM A. and others.
20| See, however, earlier: the conviction of an employee to pay the symbolic sum of €1 in damages
and interest for having made grave personal accusations of sexual harassment against the Deputy
Chairman without providing proof, thereby tarnishing the company’s image (Labour Court, 26
September 2002, C. Mo.-Lo. v. SAM Cosmetic International).
21| Court of Appeal, 7 May 2024, Case No. 05354; Labour Court, 14 July 2022, Ms A., née B., v. Société
C. & D.
22| Labour Court, 12 June 2023, Ms A. v. SAM B.; Labour Court, 16 December 2022, Ms A., née B., v.
SAM C.; Labour Court, 23 May 2022, Ms A. v. SARL B.; Labour Court, 28 January 2022, Mr M. C. v.
E.M.T.; Labour Court, 25 April 2019, Ms C. D. v. SARL A.
23| Court of Appeal, 30 May 2023, Mr A. v. SAM B.; Court of Appeal, 9 November 2021, SAM Top Nett
v. Mr L.; Court of Appeal, 30 June 2020, Ms C. D. v. SARL A.
24| Court of Appeal, 7 May 2024, Case No. 05354.
25| Labour Court, 25 April 2019, Ms C. D. v. SARL A.
26| Labour Court, 12 December 2023, Ms N. A. v. SAM B.
27| Debates of the National Council, Annex to the Journal de Monaco of 6 July 2018 (No. 8.389), p. 1633.
28| Labour Court, 14 July 2022, Ms A., spouse B., v. Société C. & D.
29| Labour Court, 4 February 2021, Ms F. B. v. Ms J. Z.
30| Court of Appeal, 7 May 2024, Case No. 05354; Labour Court, 14 July 2022, Ms A., spouse B., v.
Société C. & D.
31| Labour Court, 12 December 2023, Ms N. A. v. SAM B.
32| Labour Court, 21 June 2024, Mr M. A. v. SAM L.
33| Labour Court, 5 May 2022, Case No. 20506.
34| Labour Court, 21 June 2024, Ms M. J. A. v. SAM F.
35| Labour Court, 23 May 2022, Ms A. v. SARL B.
36| Court of Appeal, 30 May 2023, Mr A. v. SAM B.
37| Labour Court, 12 December 2023, Ms N. A. v. SAM B.
38| Labour Court, 2 December 2022, Mr A. v. B. B. Company; cf., in cases of workplace violence,
Labour Court, 8 June 2022, Mr A. v. SARL B.
39| Labour Court, 2 December 2022, Mr A. v. B. B. Company; Labour Court, 8 June 2022, Mr A. v.
SARL B.
40| Labour Court, 27 September 2024, Ms V. A. v. SAM N & Cie and Société P.
49