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Company whistleblowers

Verified 19 October 2022 - Directorate for Legal and Administrative Information (Prime Minister)

The employee must alert his or her employer of a serious risk to public health or the environment posed by the company. This alert is distinct from that of general whistleblowers. We present you with the information to remember in the 2 cases.

General case

A whistleblower is a natural person who signal or disclosure, without direct financial consideration and in good faith, information relating to crime, offence, a threat or harm to the public interest. It could also be a violation (or an attempt to conceal the violation) of an international commitment by France.

In a company, this may be an employee or former employee, but also persons who have applied for a job.

The information must have been obtained either during the performance of the contract or in the context of the application for employment.

The information must relate to facts which are are produced or for which there is a high probability that they will occur. This may include acts of sexual or moral harassment.

Please note

facts, information and documents relating to national defence and medical confidentiality in particular shall excluded of the alert system.

Identity Privacy Guarantee

Confidentiality of the identity of the persons responsible for the alert, the persons concerned and any third party mentioned in the alert shall be guaranteed.

Elements that identify the whistleblower cannot be released without the whistleblower's consent. However, they may be referred to the judicial authority in certain cases.

Where the persons responsible for the collection or processing of alerts must report the facts collected to the judicial authority, the information identifying the whistleblower may also be communicated to the judicial authority. In this case, the whistleblower is informed.

Civil irresponsibility

Where the procedure for public disclosure or reporting is followed, the beneficiaries of protection may not be ordered to pay damages for the damages caused by such public disclosure or reporting.

The whistleblower must have had reasonable grounds to believe that this procedure was necessary to safeguard the interests at risk.

Criminal irresponsibility

Where the public disclosure or reporting procedure is followed, the beneficiaries of protection are not criminally responsible.

This irresponsibility applies to offences possibly committed in order to obtain the documents necessary to prove the information reported or disclosed.

However, there must not have been an infringement in order to obtain the information itself.

Protection against retaliation, including disciplinary measures

The protection is for any retaliatory measures that would take in particular one of the following shapes:

  • Suspension, lay-off, dismissal
  • Downgrade or Refusal to Promote
  • Transfer of duties, change of place of work, pay reduction
  • Suspension of training
  • Negative Performance Assessment
  • Discipline
  • Discrimination
  • Non-renewal of a fixed-term employment contract or a temporary employment contract

The protection applies not only to whistleblowers but also to all natural persons (colleagues, relatives) or moral (including the trade union) that assists in the reporting or disclosure.

The whistleblower is not required to make an internal alert before making an external alert. The internal reporting procedure differs depending on the company size.

Internal reporting

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Company of less than 50 employees

In these companies, if there is no internal procedure for the collection and processing of alerts, the internal report may be made to the hierarchical superior.

It can also be done directly to the employer or to a referee designated by the employer.

Company of 50+ employees

The employer shall establish an internal procedure for the collection and processing of alerts, after consulting the CSE: titleContent. This procedure must be communicated to employees by any means.

The author of the alert shall be informed in writing of his receipt within 7 working days.

It shall also be informed in writing and within a reasonable time of the measures envisaged or taken. This period may not, in all cases, exceed 3 months and 7 working days.

External reporting

External reporting can be done either directly or after internal reporting.

This is done:

  • To the competent authority, in particular ::
    • DGCCRF: titleContent
    • HAS: titleContent
    • Cnil: titleContent
    • DGT: titleContent
    • DGEFP: titleContent
  • To rights defender
  • To the judicial authority
  • To the competent institution, body or body of the European Union (EU) in respect of a breach of an EU law

The external alert shall indicate whether or not an internal alert has been transmitted.

The author of the alert shall be informed in writing of his receipt within 7 working days, except in special cases (e.g. preservation of the identity of the author).

The authority concerned shall communicate in writing to the author of the alert the measures envisaged or taken.

This communication shall take place within a reasonable period which shall not, in most cases, exceed 3 months and 7 working days.

It may be extended to 6 months if the circumstances of the case warrant it.

Public Disclosure

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If acknowledgement of receipt of the external alert is received

Public disclosure is only possible in the following cases:

  • If no appropriate measures was not taken in response to this report:
    • If one of the competent authorities has been seized (DGCCRF, ASN...), after a period of 3 months fromacknowledgement
    • If another authority has been seized (defender of rights, judicial authority...), after a period of 6 months fromacknowledgement
  • In case serious and imminent danger
  • In case imminent or manifest danger to the public interest
  • When external reporting causes the whistleblower to be exposed to retaliatory risk
  • When external reporting has no chance of success

If there is no acknowledgement of external reporting

Public disclosure is only possible in the following cases:

  • If no appropriate measures was not taken in response to this report:
    • If one of the competent authorities has been seized (DGCCRF: titleContent, ...), after a 3 months from the end of a period of 7 working days from the alert
    • If another authority has been seized (defender of rights, judicial authority...), after a period of 6 months from the end a period of 7 working days from the date of the report
  • In case serious and imminent danger
  • In case imminent or manifest danger to the public interest
  • When external reporting causes the whistleblower to be exposed to retaliatory risk
  • When external reporting has no chance of success

Warning  

Whistleblower protection does not apply when public disclosure is contrary to the interests of defence and national security.

The Advocate informs, advises, directs and protects whistleblowers. It shall deliver an opinion on the status of whistleblower.

The Advocate shall direct the whistleblower to the competent authority or authorities.

In the areas covered by his other missions, and only in those areas (discrimination, children's rights, etc.), the Ombudsman deals with and appreciates the report made.

The referral to the Advocate is free of charge and can be done in particular via this online form:

Enter Rights Defender Online

Public health and the environment

An employee shall notify his or her employer if he or she believes, in good faith, that the products or manufacturing processes used or implemented by the establishment pose a serious risk to public health or the environment. If this employee is a member of the CSE: titleContent, special provisions shall apply. In all cases, these employees enjoy specific protection.

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The employee is not a staff representative in the ESC

The worker shall immediately alert the employer if he or she considers, in good faith, that the products or manufacturing processes used or implemented by the establishment pose a serious risk to public health or the environment.

The alert is written on a special register whose pages are numbered.

This alert is dated and signed.

It shows the following information:

  • Nature of the serious risk to public health or the environment
  • Potential impacts on public health or the environment
  • Any other information relevant to the assessment of the recorded alert

The employer shall inform the employee who sent him the alert of the action he reserves for the latter.

The employee shall be a staff representative at the ESC

A staff representative at the EHC who, inter alia through a worker, determines that the products or manufacturing processes used or implemented by the establishment pose a serious risk to public health or the environment shall immediately alert the employer.

The alert is written on a special register whose pages are numbered.

This alert is dated and signed.

It shows the following information:

  • Nature of the serious risk to public health or the environment
  • Potential impacts on public health or the environment
  • Any other information relevant to the assessment of the recorded alert

The employer shall examine the situation in conjunction with the staff representative at the EHC who forwarded the alert to the employer and shall inform him of the follow-up to the alert.

Please note

The special register shall be kept, under the responsibility of the employer, at the disposal of staff representatives at the ESC.

Public health or environmental alerts cannot be grounds for punishment, dismissal or action discriminatory.

In addition, an employee who has alerted his employer to this matter cannot be held liable (civil or criminal) for any damages caused by his or her report.

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