French employment law does not yet 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 meager set of legislative provisions.
Current legislation
Under currently applicable legislation, no employee can be disciplined, dismissed or discriminated against for having reported, in good faith, various sets of facts such as moral and sexual harassment, discrimination, corruption, facts representing a serious risk to public health or environment, facts constituting a crime or an offence, etc.
Aside from such specific regulations, whistleblowers may also benefit from wider protection under case law which tends to consider that whistleblowers are exercising 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.
Under French regulations, any measures taken in disregard of such protection are 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.
In any case, 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 with 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.
New developments
There is currently a draft law under discussion before the French parliament which aims at providing for a general protection for whistleblowers and replacing the current varied set of rules.
Under the current version of the draft law, a whistleblower would be defined as a person who reports or reveals, in the general interest and in good faith, a crime or an offence, a serious violation of the law or of a regulation, or facts which pose a serious risk to the environment or public health and safety.
It is further specified that the whistleblower should not exercise his/her right with the intention to cause harm or with a view to obtaining any advantage whatsoever. In any case, such right to report or reveal the above types of facts may not violate legal secrecy (national defense, medical secrecy and attorney-client privilege).
The draft law also creates a specific procedure pursuant which the right to report or reveal the aforementioned facts can be exercised. In this regard, an initial report would have to be made to the employer (or a person designated for such purposes or the employee’s manager) and, in the absence of any response or reaction within a reasonable time period, the facts can be reported to the authorities, the employees representatives or other specific bodies such as associations whose purpose is to assist whistleblowers. If such institutions or organizations do not take into account the report, then the whistleblower can make the report public. It would also be provided that appropriate procedures aiming at collecting such reports must be established within companies employing at least 50 employees.
Under such legal framework, the whistleblower would be protected and could not be subject to any disciplinary sanctions, termination of employment or be discriminated in any manner whatsoever on the basis of his/her report or revelation, any such measures taken in violation of this protection being deemed to be null and void. Finally, the current draft law states that any person impeding the whistleblower’s right to report the facts listed above can be punished by a fine of up to 15,000 Euros and an imprisonment of up to one year.
