Whistleblowers: a subtle regime

Summary: The protection of whistleblowers, governed by the "Waserman" law of March 2022, was clarified by two judgments of the Cour de cassation (Supreme Court)  in June and September 2023. The first case emphasises the need for a clear warning, requiring careful verification by the judge. The second abolishes the requirement of disinterestedness, protecting the whistleblower as long as he is acting in good faith. The practical implications include the nullity of dismissal in the event of a breach of the protective status, even if other grounds are invoked. The judge must assess compensation in the light of these grievances.

The legal protection provided to whistleblowers has undergone significant changes, notably with the enactment of the Waserman Law on 21 March 2022, bringing it into line with the European Directive of 23 October 2019. Recent court decisions, in particular those dated 1 June 2023 and 13 September 2023, shed crucial light on the changing landscape of whistleblower protection.

Clarification of Alert and Whistleblowing Procedures

The Requirement for a Warning to be Classified as a Criminal Offence

Recent legal developments underline the imperative link between the facts reported and the illegality, as highlighted by the judgment of 1 June 2023. The case concerning an operations director highlights the need for a precise link between the reported acts and illegal behaviour to justify whistleblower protection.

Abandoning the Disinterested Nature of Whistleblowing

The ruling date of 13 September 2023 marks a decisive turning point by removing the requirement for whistleblowers to act in a disinterested manner. Previously included in the Law of 9 December 2016, the Waserman Law of 21 March 2022 removed this prerequisite. The French Supreme Court has ruled that whistleblowers are now protected as long as they report facts in good faith, regardless of personal motives or interests.

Practical Consequences

Criminal Conviction Required... Except for the Employee!

The ruling date 1 June 2023 underlines the importance of a clear warning from the employee. However, employees, who have no legal knowledge, are not required to attribute the qualifications of "crime" or "offence" to the facts reported. The judge's role is to verify the true characterisation of the facts without being bound by the names used by the parties. This idea is particularly relevant in cases of moral harassment, where the precise classification of the acts at the time of the initial report may not be decisive.

The Contaminating Motive for Breach of Protective Status

The ruling of 13 September 2023 sets out in greater detail the consequences of a breach of the whistleblower's protective status. In this case, the dismissal is null and void. Even if the dismissal is based on other grounds, such as violation of fundamental freedoms or discrimination, it will still be null and void. This principle of 'contaminating grounds' highlights the need for employers to carefully examine the grounds for dismissal, as any mention of whistleblowing in the letter of dismissal renders the dismissal null and void.

In conclusion, these recent rulings bring essential clarifications to whistleblowing procedures, by redefining the link between the facts reported and the potential illegality. The abandonment of the disinterestedness requirement marks an important legal change, underlining the importance of whistleblowing in good faith. Practical consequences include the need for accurate and transparent whistleblowing procedures and the invalidity of dismissals based on breaches of whistleblowers' protective status. Employers must navigate these nuanced legal developments to ensure compliance and fair treatment of whistleblowers.