Whistleblower series: France
When conducting internal investigations, a French-based company must conduct a thorough query upholding its obligation to provide a safe and well-managed work environment while at the same time protecting the personal freedom and privacy rights of its employees.
While balancing employee rights with management duties may seem like a tightrope walk between two contrasting objectives, French law is clear. Any restriction on an employee's individual freedom through an investigation must be justified and proportional to the legitimate objective pursued.
French law recognises various types of abuse cases likely to trigger a whistleblowing process, including: infringements of the individual rights of an employee, which usually falls under the category of discrimination, harassment or attempts to exert unlawful control; serious risk to an employee's health and safety through problems in the work environment, exposure to dangerous products or hazards posed by specific tools or machinery; perceived dangers to public health or the over all environment; and any threat to the economic wellbeing of a company through fraud, corruption or mismanagement.
In each case, employers are obliged under French law to respond in different ways. In situations where an employee's personal rights may be threatened, an employer must hear out the charges and launch an investigation. A failure by the employer to respond adequately could result in proceedings.
If an employee's health and safety are potentially at risk, the complaint will be officially lodged through a "dedicated register" and the employer will immediately launch in investigation. An emergency meeting must then be organised within 24 hours, and if a disagreement between the Whistleblower and company persists concerning the nature or gravity of the disputed facts, the Labour Inspector may be required to step in.
If an employee spots risks to public health and the environment, he must again lodge his complaint in the company's "dedicated register". If a company investigation does not uncover a risk, the company's Works Council may decide to report the case to a state prefect.
In terms of economic alerts where a company's wellbeing is at risk, the Economic and Social Council (Comité Economique et Social, which replaces the Works Council from 1 January 2020) will address this during its next official meeting and demand an immediate response from the company, which will be obliged to answer any and all of the Council's questions.
If the company's responses are deemed insufficient, the Council will draft a report. A chartered accountant, paid for by the company, can assist in this if the Council chooses. Ultimately, the chartered accountant’s report will be forwarded to the company's board of directors and statutory auditors.
A mandatory Whistleblowing process exists in France for companies of more than 50 staff members. Based on the 2016 Sapin 2 Act, this process protects the identity of a Whistleblower and the confidentiality of the information that has been disclosed.
According to the Act, the Whistleblowing procedure is as follows: the staff takes his complaint to his immediate manager, employer or some other company representative identified in the firm's internal regulations. If the company does not act on the complaint, the Whistleblower can then appeal to the courts, the Officer for Human Rights or a professional association. If these bodies fail to act (or if the complaint is deemed a public emergency), the Whistleblower can appeal to the press or social media to get the message out.
By law, an individual lodging a complaint must receive protection against retaliation in the workplace, although to be protected a Whistleblower must be an employee, trainee or job applicant; he must be disclosing a crime or infringement of any regulation that endangers the environment or public safety; he must be a disinterested party (who cannot benefit from the complaint) and must be acting in good faith; and he must follow the complaint process as it is set out in the law.
French case law has recognised Whistleblowing systems used by U.S. companies further to the SOX Act operating in France, but adopting these procedures are optional and no employee can be sanctioned for not reporting an abuse through this system.
Also, this U.S. system only refers to financial wrongdoing and corruption and does not address workplace harassment. Neither the reports nor the identity of the Whistleblower can remain confidential, although employees making complaints are protected from retaliation (i.e. being fired for disclosing corruption) unless a later investigation proves that the employee had knowingly filed a false report.
In the French system, the law dictates that employers conduct a disciplinary investigation within two months of learning about an alleged wrongdoing. During the inquiry, the company's tactics must be transparent, adhering to established regulations on safety and employee rights. The employee under scrutiny must be informed of the scope and ramifications of the investigation and the collection of evidence must fully conform to French and EU data protection regulations.
Furthermore, any controls placed on an employee during an investigation must not violate his rights and must be justified by and proportional to the alleged wrongdoing.
Although not required by French law, bullying and harassment cases should involve staff representatives in the investigation as a gesture of respect to the employee under scrutiny and to underscore the company's commitment to fair play.
In terms of investigative techniques, a company can search any tool or item that is considered an exclusive professional asset, such as a company-owned laptop. For those assets, such as a company vehicle, that is considered to be both a professional and personal asset, searches must be conducted according to established internal rules and only in the presence of the employee.
If a company wants to search an employee's belongings, such as a personal Smartphone or a bag, it must receive the employee's consent first. The only rare exception to this is in the case of a security-related emergency, such as a bomb threat where bags and purses may need to be inspected.
Phone calls can only be recorded, based on established company policy, for training and employee evaluation purposes. As for other techniques, employees cannot be subject to surveillance or "tails" outside of the workplace. Employees can be interviewed, although French case law favours the use of this tool in bullying and harassment cases. When employees are interviewed, they must be questioned according to a carefully constructed questionnaire. The results of the interview must be transcribed, and a written report on the interview's findings must be drafted.
If an investigation finds evidence of wrongdoing, a staff member can be given one of four sanctions. He can be assessed blame, given a warning, suspended without pay or dismissed.
When levying sanctions, employers must keep in mind that they cannot sanction an employee more than once for a particular wrongdoing. The employer must confront an employee with the full charges against him, and give the staff member an opportunity to respond. And lastly, the punishment must be proportional to the wrongdoing. An employee cannot be validly dismissed for a minor transgression.