Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.
This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).
It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.
In this case, several employees of one of the most well-known French public transportation companies raised concerns regarding another employee to the company’s Ethics Committee, in early February 2013.
The company initiated an internal investigation regarding the alleged behaviour, and in this context, several employees were interviewed under the seal of anonymity. The Ethics Committee then prepared and circulated a report regarding the alleged behaviour in early September 2013.
On the basis of the report, the company notified the employee on 18 September 2013 of an immediate suspension of his employment contract together with an invitation to a hearing before the internal disciplinary committee.
The employee was then notified his dismissal for serious misconduct on 25 September 2013, based on the following terms: “In the investigation report circulated by the Ethics Committee on 9 September 2013, the following facts are alleged: words and attitudes characterizing insubordination or disrespect vis-à-vis your hierarchy; insulting comments and aggressive behavior against your colleagues, even causing suffering at work for some of them; racist comments about a Muslim member of your team; recurrent sexually suggestive words and inappropriate attitudes towards female colleagues”. The dismissal letter also pointed out the fact that the employee’s behaviour was contrary to the ethical values that the company sought to promote, constituted a lack of loyalty and endangered the physical and moral health of the employees’ colleagues.
The employee challenged his dismissal on the basis of several grounds, one of which was that the dismissal could not be based solely on the report of the Ethics Committee since this document was not signed, did not mention the identity of the authors of the report and that the statements of the various persons contained therein were anonymous, which deprived him of his right to defense.
The Court of Appeal dismissed the employee’s claim particularly on the ground that the employee had been able to read the report issued by the Ethics Committee and to make comments thereon.
Quoting the European Convention for the Protection of Human Rights and Fundamental Freedoms, the French Supreme Court reversed the decision of the Court of Appeal, holding that its decision breached such Convention, which guarantees all individuals the right to a fair trial. The Supreme Court held that courts cannot solely or significantly base their decision on anonymous reports.
In other words, if the company had been able to obtain identified witnesses, or if the anonymous reports had been supported by objective and material evidence (such as emails, or signed written documents), the dismissal might have been valid.