A New Law Improves the Protection of Whistleblowers

New Legislation Enacted

A law dated March 21, 2022, provides a new definition of whistleblowers, and improves the protection system in place. Whistleblowers are defined as individuals who report or disclose information relating to a violation of law, without direct financial compensation, and in good faith. He or she may report a violation or an attempt to conceal a violation of law. The condition of “serious and manifest” violation of law, in place until now, is removed. In the professional context, a whistleblower can now report facts for which he has only indirect knowledge.

For whistleblowers who have the status of employee, it is no longer required to report to the employer or its representatives. They may choose to report externally, especially to the Human Rights Defender, the judicial authority or a competent authority designated by decree. Whistleblowers are not liable for damages caused by the disclosure of a report, as long as they had reasonable grounds to believe that the disclosure was necessary to protect the interests at stake. In criminal matters, the law broadens the scope of protection of whistleblowers, especially concerning the confidentiality of the documents obtained.

New Law Aiming to Accelerate Economic and Professional Equity Between Women and Men: Indicators to be Published

New Legislation Enacted

Every year, companies with at least 50 employees must calculate and publish on their website the results obtained for each indicator relating to gender pay gaps. The “Rixain” law dated December 24, 2021 and its implementation decree reinforces the constraints on companies with a score below 75/100. These companies must publish the corrective and remedial “measures” implemented either by agreement or unilateral decision on the same internet page as the results obtained. When the score obtained is less than 85/100, then the employer must publish the progress targets defined by the agreement or the unilateral decision for the indicators for which it has not achieved the maximum score.

The corrective measures envisaged or already implemented, the targets for the improvement of each of the indicators, as well as the methods of publication, must be transmitted to the services of the French Minister of Labor. This information is also made available to the social and economic committee in the economic, social, and environmental database (BDESE).

Professional Equity: Gender Diversity in the Directorship of Large Corporations

New Legislation Enacted

In companies with at least 1,000 employees, the law dated December 24, 2021, sets out new obligations in terms of the representation of women and men in management positions. The new system will be implemented in successive steps. As of March 1, 2022, employers falling in the scope of the legislation must publish every year the existing gaps, if any, in the representation of women and men among senior executives and members of management bodies. These gaps will be made public on the website of the Ministry of Labor as of March 1, 2023.

As of March 1, 2026, the proportion of persons of each sex among senior executives and members of management bodies may not be less than 30%. Companies that do not meet this quota will have to publish improvement targets and the corrective measures adopted. As of March 1, 2028, failure to meet this quota may result in a financial penalty being imposed by the authorities. Finally, as of March 1, 2029, this minimum proportion of persons of each sex will be increased to 40%.

Protection of Employees Who Have Reported Breaches of Ethical Obligations

Precedential Decision by Judiciary or Regulatory Agency

Author: Guillaume Desmoulin, Partner – Fromont Briens | Littler

The French Supreme Court has rendered an interesting decision regarding the protection granted to an employee who reports illegal acts and behaviors observed in a professional context and, more precisely on the validity of a dismissal notified before the entry into force of the provisions protecting whistleblowers. In the absence of such protection, the dismissal has been declared null and void on the grounds of infringement of the freedom of expression, guaranteed by Article 10 § 1 of the European Convention on Human Rights.

In 2016, the French Supreme Court had already ruled that the dismissal of an employee for having reported or testified, in good faith, to facts of which he had knowledge in the performance of his duties and which, if established, would be of such a nature as to characterize criminal offenses, is rendered void. The French Supreme Court added in this case that an employee must not suffer any retaliation for having reported breaches of ethical obligations provided for by law or regulation.

Sanction for Refusing a Transfer Because of Religious Beliefs

Precedential Decision by Judiciary or Regulatory Agency

In this matter, a cleaning agent had refused his transfer to a cemetery because his religious convictions (Hinduism) forbade him to work in such a place. Citing the employee’s failure to meet his contractual obligations, the employer decided to transfer him to another site for disciplinary reasons and then to dismiss him for this new refusal. The employee invoked the infringement of his religious freedom to request the cancellation of the disciplinary transfer and his dismissal.

The French Supreme Court recalled that, in order to be lawful, restrictions on religious freedom must be justified by the nature of the task to be performed, meet an essential and determining professional requirement and be proportionate to the aim sought. The Court considered that the disciplinary transfer ordered by the employer was justified by an essential and determining professional requirement and proportionate to the aim sought. On the one hand, the mobility clause had been legitimately implemented and, on the other hand, the employer had pronounced a disciplinary sanction allowing the maintenance of the employment relationship by assigning the employee to another cleaning site.