Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

Applicants for a job, an internship or a period of training in an undertaking, or employees are granted a reduction in the burden of proof in the event of an appeal against a retaliatory measure. Article 10-1, III, A of the Sapin II Law stipulates that, if the claimant presents evidence to suggest that he or she has reported or disclosed information under the conditions set out in Articles 6 and 8 …

Allocation of burden of proof

Applicants for a job, an internship or a period of training in an undertaking, or employees are granted a reduction in the burden of proof in the event of an appeal against a retaliatory measure. Article 10-1, III, A of the Sapin II Law stipulates that, if the claimant presents evidence to suggest that he or she has reported or disclosed information under the conditions set out in Articles 6 and 8 of the law, it is up to the defendant to prove that his or her decision is duly justified.

The legislator had enshrined this probative mechanism in Article L. 1132-3-3(3) of the Labor Code, but the Waserman Law of 21 March 2022 which sought to reinforce the protection of whistleblowers  redrafted the article, which, since 1 September 2022, no longer makes explicit reference to the adjustment to the burden of proof, and now makes a reference to part III of Article 10-1 of the Sapin II Law. Both the Defender of Rights authority   and the courts  routinely apply these principles whilst noting that the alleged whistleblower must provide initial factual evidence before the burden of proof is shifted to the employer .

Law No 2022-401 of 21 March 2022 to improve the protection of whistle-blowers, OJ of 22 March 2022, Art. 7.

Def. rights, 28 May 2020, LawLex202400003133JBJ; 22 October 2020, LawLex202400003132JBJ; 14 April 2021, LawLex202400003131JBJ, emphasizing that when the employee presents factual elements that allow the presumption that he or she has related or testified in good faith to facts constituting an offense or crime, or reported an alert in compliance with the Sapin II Law, is granted an adjustment of the burden of proof, which requires the employer to establish that his or her subsequent decisions are justified by objective elements unrelated to the alert.

CA Pau, 28 January 2021, LawLex202300012087JBJ; Cass. soc., 7 July 2021, LawLex202300012188JBJ; 1 February 2023, LawLex202300011807JBJ.

CA Grenoble, 5 November 2020, LawLex202300011623JBJ, specifying that the adjustment of the burden of proof of prohibited discrimination due to the disclosure in good faith of an offense or crime of which an employee has become aware in the course of his or her duties implies, as a prerequisite, the employee's disclosure of an alleged crime or offense and not mere breaches of the company's internal procedural rules ; CA Nîmes, 16 May 2023, LawLex202300011648JBJ, recalling that an employee who claims to have denounced serious breaches to his employer, in the name of the general interest of consumers, cannot be granted whistle-blower status, if he does not produce factual elements making it possible to establish a presumption of actual commission of the alleged practices.

Compliance

80. Allocation of burden of proof

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

80. Allocation of burden of proof

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise