French employment law does not provide for a comprehensive and consistent set of rules for the purpose of protecting whistleblowers. Instead, French employment law tackles issues arising out of whistleblowing situations through a relatively meagre set of legislative provisions resulting principally from recent awareness on the subject.
Specific regulations: limited protection
Under currently applicable legislation (which is quickly evolving), no employee can be disciplined, dismissed or discriminated against for having reported, in good faith, the following:
- Moral and sexual harassment;
- Facts representing a serious risk to public health or environment;
- Facts relating to the safety of certain pharmaceutical products;
- Ill treatment and deprivation of care in medical and care facilities;
- Civil aviation incident or accident;
- Facts relating to situation of conflict of interest concerning members of the Government or certain public officials;
- Facts constituting a crime or an offence.
Generally speaking, case law tends to assess the employee’s good faith through his/her knowledge of the inaccuracy of his/her allegations. As a consequence, the employee will not be considered as acting in good faith (and therefore would not be protected) if, at the time of the denunciation, he/she was aware of the inaccuracy or incorrectness of his/her statements.
Under French regulations, any measures taken in disregard of such protection is deemed to be null and void, and if the employee has been dismissed on the basis of his/her whistleblowing, he/she is entitled to be reinstated in his/her previous situation. In addition, an employee victim of such illicit measure is entitled to seek damages in an action brought in the special employment tribunal for the loss suffered and even to lodge a claim for constructive dismissal, amounting to unfair dismissal.
Case law approach: whistleblowers are protected by the freedom of speech
Aside from such specific regulations, whistleblowers may also benefit from wider protection under case law which tends to consider that whistleblowers are using their rights to freedom of speech (to which only very limited restrictions are permitted).
Thus, provided that the whistleblower does not act in bad faith or in a culpably thoughtless manner and that his/her denunciation does not contain offensive, defamatory or excessive statements, the employer is not entitled to discipline, dismiss or discriminate him/her. Failure to comply with this prohibition would be considered as a violation of a fundamental right, thus triggering the sanction of nullity of the disciplinary action taken.
The protection is not absolute
The protection of whistleblowers, both under specific regulations and case law decisions, is not absolute and entails a certain level of responsibility for the whistleblowers. In particular, the employee can be held liable for penal charges such as slanderous denunciation (punishable by up to 5 years of imprisonment and a fine of up to 45,000 Euros) and be subject to claims for damages should his/her reporting be made out of malicious intent, or with the knowledge that the facts reported are inaccurate or incorrect. Obviously, the employee could also face disciplinary sanctions by the employer.