OD FLASH | The court of cassation clarifies the scope of the right to alert

Appeal No. 24-10.326 | Court of Cassation

Any elected member of the Social and Economic Committee (CSE) may exercise their right to alert when they become aware, in particular through an employee, of an unjustified or disproportionate infringement of human rights, physical and mental health, or individual freedoms. If no action is taken or no solution is found, the employee concerned or the elected representative who raised the alert may refer the matter to the labor court’s judgment panel under the accelerated procedure to put an end to the infringement in accordance with Article L. 2312-59 of the Labor Code.

The Court of Cassation has provided several clarifications regarding this referral to the judge to put an end to an infringement following a whistleblowing alert.

Firstly, it states that infringement of individuals’ rights, physical and mental health or individual freedoms necessarily constitutes harm to the collective interest of the profession. It follows that a trade union organization is entitled, on the basis of Article L. 2132-3 of the Labor Code, to join the action brought by a member of the CSE exercising their right to alert.

Secondly, the Court specifies that the exercise of the right to alert is not subject to any particular formalities. Therefore, the written document by which the employee representative refers the matter to the employer does not set the limits of the dispute. The CSE member may therefore, before the judge, invoke the situation of other employees affected by the facts reported, even if they are not expressly mentioned in the initial alert letter.

Thirdly, the Court ruled that the exercise of the right to alert by a member of the CSE is not subject to the absence of legal action brought by the employee concerned before the labor court. The existence of individual labor court proceedings brought by an employee does not therefore prevent the employee representative from taking action to put an end to a violation of the rights of individuals within the company.

Finally, the Court confirmed that requests relating to access to the economic and social database and its content do not fall within the scope of the right to alert provided for in Article L. 2312-59 of the Labor Code, as such requests are subject to a specific, separate legal regime.