On November 8, 2016, the French Parliament passed a law reinforcing the whistleblower’s status. In so doing, France finally caught up with other European countries.
The law defines the whistleblower as an individual (1) who selflessly and in good faith (2) reveals or reports (3):
- a crime or an offense (i) ;
- a clear and serious violation of an international agreement properly ratified or approved by France, (ii) of an international organization’s unilateral act taken on this basis (ii), of law and regulations (iii);
- or a threat or a serious harm caused to the public interest (iv);
that he or she is personally aware of (4).
This definition could lead to debate, as most of the concepts are not clearly defined. What is a “clear and serious violation” of an international agreement? A testimony about a “simple breach” may be out of the protection? What is the purpose of such a restriction? As European law seems to be comprised in the scope of the law, it is difficult to imagine that a minor breach cannot be reported under the whistleblower’s law as France has the duty to abide by all EU directives and regulations.
How could we define “a serious harm” and moreover “the public interest”?
How can a whistleblower react when a person reports facts that he or she discovered or heard from somebody else? Must the whistleblower personally observe the act in question?
The whistleblower cannot be discriminated against nor face unfavorable measures – particularly in terms of remuneration or career evolution – nor be excluded from a recruitment procedure, nor be disciplinarily sanctioned (including dismissal).
Surprisingly, retaliatory measures against whistleblowers cannot be annulled by the judge, contrary to measures prohibited by other discrimination criteria (ethnic backgrounds, sexual preferences, age…).
On June 30, 2016, after the enforcement of the law, the French Supreme Court cancelled the dismissal of an administrative and financial director of a public institution who denounced the prosecution’s services for fraud and attempted bribery of a medical officer. The law missed the opportunity to codify this jurisprudence.
In case of dispute, the employee who invokes the application of the whistleblower’s legislation has to present to the court evidence suggesting that he or she acted, reported or testified in good faith. The defendant will then have to prove that the contested decision was based on objective factors that do not involve the claimant’s testimony.
On November 17, 2016, France also put an end to the delay regarding class actions. Such discrimination or disabilities actions may be brought by a representative union or a declared association within at least 5 years from the incident.
Key steps of the procedure
The union has to send a formal letter to the employee in order to ask him to put an end to the identified discrimination. Upon receipt, the employer has one month to meet with the works committee and representative union within the Company.
They can request that the Company engage in discussions about measures needed to cease the discrimination in question. From then, the parties have 6 months to reach a solution.
The law has attempted to solve the discrimination issue prior to going before the Tribunal. In cases where negotiations with the employer did not succeed, the class action can be brought before the “Tribunal de Grande Instance”.
The Tribunal can order a financial strain to end the discriminatory situation, issue a specific performance such as reinstatement, salary increase and allocate damages to the victims.
Author: Pascaline Kleim