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

Before the adoption of a specific system of protection for whistleblowers, the Social Chamber of the Court of Cassation, basing itself on the case law of the European Court of Human Rights , held that a dismissal on the grounds that an employee - whose good faith was not be called into  question - had denounced to the public prosecutor facts which could be classified as criminal, had to be annulle …

Dismissals invalidated

Before the adoption of a specific system of protection for whistleblowers, the Social Chamber of the Court of Cassation, basing itself on the case law of the European Court of Human Rights , held that a dismissal on the grounds that an employee - whose good faith was not be called into  question - had denounced to the public prosecutor facts which could be classified as criminal, had to be annulled as it infringed the freedom of expression guaranteed by Article 10 ECHR .

Henceforth, any individual who meets the definition of whistleblower set out in Article 6 of the Sapin II Law, and who has complied with the rules relating to the disclosure procedure set out in Articles 7-1 and 8, may be granted the protection measures set out in Article 10-1 of this law. Under this article, it is forbidden to subject or attempt to subject an employee whistle-blower to retaliatory measures, such as suspension, dismissal, demotion, salary reduction, negative performance evaluation, disciplinary measures, intimidation, harassment, discrimination, or non-renewal or early termination of his or her employment contract.

When the whistleblower is an employee, who has knowledge of facts constituting an offense or crime, in the exercise of his duties and who has testified or reported these facts in good faith, he is granted the specific protections of the Labor Code, in particular Article L. 1121-2, created by the Law of 21 March 2022 , which lays down the principle of the prohibition of retaliatory measures, Article L. 1132-3-3, which refers to the protection of Articles 10-1 and 12 to 13-1 of the Sapin II Law, and Article L. 1132-4, which enshrines the invalidity of decisions or acts taken with regard to the employee in disregard of the principle of the prohibition of retaliatory measures. In application of these texts, any decision or action taken with regard to a whistle-blower, in disregard of this prohibition, is liable to be annulled ipso jure before the work tribunal (Conseil des Prud'hommes). The dismissal of an employee for having reported or testified to facts constituting an offense or crime, of which he or she became aware in the course of his or her duties, can only be annulled in the absence of bad faith on his or her part . The letter of dismissal, which makes a clear link between the whistleblower's denunciation of the facts and the termination of his employment contract, establishes that the latter constitutes a retaliatory measure within the meaning of Article L. 1132-3-3(2) of the Labor Code, which justifies its cancellation . Similarly, the dismissal of an employee on the grounds that he or she has reported facts that have not been established, without his or her bad faith having been demonstrated, constitutes a manifestly unlawful disturbance . The mere critical attitude adopted by a whistle-blower cannot justify, even partially, a dismissal measure, since the launch of an alert necessarily entails calling into question certain aspects of the undertaking's operations . On the other hand, dismissal cannot be called into question if the employer establishes that it is based on objective facts unrelated to the alert, such as the employee's refusal to attend proposed conference calls, even though he is a senior executive bound by a duty to set an example, his condescending and derogatory comments to the Managing Director, his mismanagement of a file, his unjustified aggressive behavior towards a colleague, and his failure to respond to several reminders from his superior . Similarly, the dismissal of an employee who has made a report concerning corruption does not conceal a desire for retaliation on the part of the employer when the latter demonstrates that it is based on objective grievances unrelated to the report concerning the employee's work and significant relationship difficulties within the department and with the undertaking's commercial and technical departments .

In assessing the causal relationship between the alert and the dismissal, the Defender of Rights also points out that, while protection against retaliation arises from the formal alert issued by the employee, it must extend to employer decisions taken even beforehand, when they are the consequence of informal disclosures that preceded the alert. Hence, difficulties in relations between the whistleblower and his or her hierarchy, invoked by the latter, cannot be considered as strictly independent and prior to the alert .

Finally, an employee who has been unlawfully dismissed may request, in addition to the invalidity of the dismissal, reinstatement or, failing this, compensation for the loss resulting from the unlawful nature of the dismissal, at least equal to six months' salary .

ECtHR, 12 February 2008,14277/04, Guja v Moldavia, holding that the dismissal of a whistle-blower, which is the most rigorous sanction possible, is a factor in assessing the proportionality of infringements of his freedom of expression, because of its strong deterrent effect. See also, subsequently, ECtHR, 14 February 2023, 21884/18 Halet v Luxembourg, holding that a criminal conviction of a whistle-blower is disproportionate to the legitimate aim pursued, due to its cumulation with a dismissal and its dissuasive effect on the exercise of his freedom of expression.

Cass. soc., 30 June 2016, LawLex202300011726JBJ.

Labor Code, Art. L. 1235-3-1. For an illustration, see CA Pau, 28 January 2021, LawLex202300012087JBJ.

Law 2022-401 of 21 March 2022, aimed at improving the protection of whistle-blowers, OJ of 22 March 2022, Art. 7.

Cass. soc., 13 September 2023, LawLex202300011562JBJ; 19 January 2022, LawLex202300012095JBJ; 29 September 2021, LawLex202400002976JBJ; CA Pau, 28 January 2021, LawLex202300012087JBJ; Déf. droits, 22 October 2020, LawLex202400003132JBJ.

Def. rights, 28 May 2020, LawLex202400003133JBJ.

Cass. soc. 15 February 2023, LawLex202300007980JBJ.

Def. rights, 14 April 2021, LawLex202400003131JBJ.

CA Versailles, 19 July 2023, LawLex202300011626JBJ.

CA Versailles, 16 September 2021, LawLex202400003109JBJ.

Def. droits, 22 October 2020, LawLex202400003132JBJ; 14 April 2021, LawLex202400003131JBJ.

Compliance

83. Dismissals invalidated

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

83. Dismissals invalidated

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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