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Crime of breach of trust by an employee

Procap Detective Toulon
PROCAP DETECTIVE TOULON - Breach of trust by an employee

What do an employee who hijacks the company's internet connection to view and download pornographic content have in common? a waiter at a bar who offers drinks to customers without the knowledge of his employer; an executive who renovates his personal home with company funds; an employee who uses his working time for purposes other than what is provided for in the employment contract, or another who transmits customer data to the competition?… Well, all these situations constitute the offense of “ breach of trust " ; and when this offense is committed within the framework of the employment relationship, the consequences, both criminally and civilly, can be extremely serious. Abuse of trust in the employment relationship, beware of temptations to misappropriate company assets.

Breach of trust: definition and constituent elements

The offense of breach of trust is defined in article 314-1 of the Penal Code, as “the act by a person of misappropriating, to the detriment of others, funds, values or any property which has been given to him and that she agreed to return them, represent them or make a specific use of them. »

For the offense to be constituted, several conditions must be met:

1- Prior delivery of a thing on a precarious basis

Article 314-1 of the Penal Code provides that there must be a surrender of the thing. The author of the offense is only a precarious holder of the thing and not the real owner. Unlike "theft", where misappropriation is purely an appropriation of another's thing, carried out without the victim's knowledge and without their consent (fraudulent subtraction of another's property), or "fraud » which supposes a fraudulent maneuver or deception, the abuse of trust necessarily supposes the delivery (by the victim or by a third party) of a thing, of funds, of values, without transfer of ownership, to the beneficiary, charge to the one this is to return them, represent them or make a specific use of them. The delivery of the thing gives rise to an obligation of the depositary towards the owner. This condition (prior surrender) is crucial, and the consistent case law of the high court has once again recalled this rule in a recent judgment rendered on December 15, 2021. Breach of trust does not necessarily result from a fraudulent act, and it he is the subtlety of this incrimination which is initially based on the handing over of a thing “freely” by its owner, without there being any transfer of ownership, but which must be returned or intended for a specific purpose. “Precarious” has the meaning here of “provisional”, “transitory”, “incomplete”, in the sense that the author who is guilty of breach of trust only has a right over the thing handed over by the owner. “minimal”, “transitory”, and which he knows must return or make a specific use of it.

2- The existence of an effective and voluntary diversion

Entering into the composition of the material element of the offense of breach of trust, misappropriation consists of the necessarily “abusive” use of entrusted property or of values handed over, or of use of the thing for a purpose other than that for which it was initially intended. The perpetrator then takes advantage of the trust placed in him by the victim to carry out the embezzlement. A contract (including moral or tacit) must necessarily have been made between the perpetrator and the victim. Not returning a rented (or even loaned) item on time potentially constitutes a breach of trust because it is undermined by the failure to respect a commitment between two people. A simple delay in returning a rented item (a vehicle for example), or an omission, is not sufficient to constitute a breach of trust; it is necessary to provide proof of effective and voluntary misappropriation, as if the beneficiary behaved towards the thing and disposed of it in the same way as if he were the real owner. The typical example of misappropriation is the case of the unscrupulous agent who sells the goods of his principal even though he has not received any authority to do so, or that of the vehicle lessee who does not return the rented property on time. planned.

3- The existence of harm

Breach of trust presupposes the existence of harm claimed by the victim. This harm is not necessarily current, but can also be possible or has not yet occurred. Likewise, the harm can be both material and moral.

4- The intentional element

Breach of trust is an intentional offense. It is necessary to provide proof that the author was aware of the precariousness of his right to the thing and of his obligation (including moral) to return the thing or make a specific use of it.

Breach of trust: sanctions provided for in the Penal Code

Criminally, breach of trust is punishable by three years' imprisonment and a fine of 375,000 euros. This penalty is increased to seven years of imprisonment and a fine of €750,000 when it is committed in an organized gang, to the detriment of an association, or of a vulnerable person due to their age, illness, an infirmity, a physical or psychological deficiency or a state of pregnancy. Complicity in breach of trust is also punishable by the same penalties. Finally, the penalties are increased to ten years of imprisonment and a fine of 1,500,000 euros when the breach of trust is carried out by a legal representative or by a public or ministerial officer either in the exercise or in the course of opportunity for the exercise of his functions, or because of his quality. Please note, however, that there is no provision in the Penal Code punishing attempted breach of trust. This offense, falling within the offenses of action, is either carried out or it is simply not.

Breach of trust in the employment relationship

Misappropriation of working time, misappropriation of customers, company property and equipment, cashing of checks from customers into the personal account, misappropriation of company assets, purchases of personal property with employer funds, etc. Some dishonest employees may be tempted to misappropriate company assets for their own benefit. In both civil and criminal cases, the penalties for such behavior can have serious consequences.

Some examples of situations characterizing a breach of trust due to unscrupulous employees:

  • Misused use of working time, for which the employee receives remuneration :

“The use by an employee of his working time for purposes other than those for which he receives remuneration from his employer constitutes a breach of trust, giving rise to the criminal liability of the employee” (cass. crim judgment of June 19, 2013 )

  • Use of working time for unfair purposes, particularly for competition

In this case, two employees had created and developed a commercial activity for two companies competing with their employer, during their working time, while using the latter's telephone and computer resources (cass. crim judgment of May 5, 2018)

  • Misappropriation of customers by former employees

Constitutes a breach of trust to divert the employer's customers for the benefit of another company, including in the absence of a customer file (cass. crim judgment of March 22, 2017)

  • Drinks offered without the knowledge of the establishment manager

A waiter who, without the knowledge of the manager, offers drinks to customers of the establishment without issuing an invoice or receipts – free of charge (cass. crim judgment of October 5, 2011)

  • Misuse of the company's internet connection for the purpose of viewing pornographic content

An employee who, using the computer and Internet connection made available to him for the purposes of his professional activity, visits pornographic sites and stores, on his hard drive, content of same nature (cass judgment; criminal of May 19, 2004)

Breach of trust by employee: what recourse can the employer have?

In the case of a serious breach of trust, the employer is justified in dismissing the offending employee by invoking "serious misconduct", or even "gross misconduct" in certain cases and if the circumstances of particular seriousness so require. justified, particularly if it is demonstrated that the employee acted with the intention of harming the employer.

There are generally three levels of misconduct (simple, serious and serious), each having its own legal and disciplinary consequences. Breach of trust, an offense provided for and punished by the Penal Code, is in itself a fault sufficiently serious to justify dismissal, however the qualification of "gross fault", although usually put forward by employers confronted with in cases of breach of trust, is not a qualification that follows from itself, the employer must still provide proof of the employee's malicious intent.

In terms of criminal procedure, the employer can incur criminal liability of the employee by filing a complaint against him for breach of trust. The problem then arises of the articulation of the criminal procedure and the disciplinary procedure. The employer can proceed with the dismissal without waiting for the criminal decision. The two procedures are independent. But in the event of a dispute before the Industrial Tribunal, the social judge must stay the ruling. And in the event of contradictory decisions between the two jurisdictions, it is the criminal which will take precedence by virtue of the adage: “The criminal keeps the civil as it stands. » Often, a criminal conviction makes it impossible for the employee to remain within the company and therefore justify their dismissal for misconduct.


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