Whistleblowers in company

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

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

General case

A whistleblower is a natural person who signal or leakwithout direct financial consideration and in good faith, information relating to a crime, one offense, a threat to or prejudice to the general interest. It may also be a violation (or an attempt to conceal the violation) of an international commitment by France.

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

The information must have been obtained, as appropriate, either during the performance of the contract or as part of the application for employment.

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

Please note

the facts, information and documents which are subject to national defense secrecy and medical secrecy, in particular, are excluded of the alert system.

Guarantee of confidentiality of identity

The confidentiality of the identity of the reporting parties, the persons referred to and any third party mentioned in the report shall be guaranteed.

The particulars likely to identify the whistleblower may not be disclosed without his agreement. However, in certain cases they may be forwarded to the judicial authority.

Where the persons responsible for collecting or processing alerts have to report the facts collected to the judicial authority, the information likely to identify the whistleblower may also be communicated to him. In this case, the whistleblower shall be informed.

Civil irresponsibility

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

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

Criminal irresponsibility

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

This irresponsibility applies to infringements possibly committed in order to obtain documents proving the information reported or disclosed.

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

Protection against reprisals, including disciplinary measures

The protection covers any retaliatory measures that may be taken in particular one of the following forms:

  • Suspension, lay-off, dismissal
  • Demotion or refusal of promotion
  • Transfer of duties, change of workplace, reduction of salary
  • Suspension of training
  • Negative performance rating
  • Disciplinary measures
  • Discrimination
  • Non-renewal of a fixed-term or temporary employment contract

Protection concerns the whistleblower, but also any natural person (colleagues, relatives) or morality (such as a trade union) that assists in making the report or disclosure.

The whistleblower shall not be obliged to make an internal report before making an external report. The internal reporting procedure differs depending on the size of the company.

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 alert may be made to the hierarchical superior.

It may also be made directly to the employer or to a referee designated by the employer.

Company of 50 or more employees

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

The person making the alert shall be informed in writing of its receipt within 7 working days.

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

External reporting

External reporting may be carried out either directly or after internal reporting.

It is carried out:

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

The external report shall specify whether or not an internal report has been transmitted.

The person making the alert must be informed in writing of its receipt within 7 months working days, except in special cases (in particular the preservation of the identity of the author).

The authority seised shall inform the person issuing the alert in writing of the measures envisaged or taken.

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

It may be extended to six months if the circumstances of the case so warrant.

Public disclosure

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In the presence of an acknowledgement of receipt of the external alert

Public disclosure is possible only in the following cases:

  • If no appropriate measures was taken in response to this report:
    • If one of the competent authorities has been seized (DGCCRF, ASN...), after a period of 3 months fromacknowledgement of receipt of alert
    • If another authority has been seized (defender of rights, judicial authority...), after a period of 6 months fromacknowledgement of receipt of alert
  • In case of serious and imminent danger
  • In case of imminent or manifest danger to the public interest
  • Where the external report causes the whistleblower to risk of retaliation
  • When the external reporting has no chance of success

In the absence of an acknowledgement of an external alert

Public disclosure is possible only in the following cases:

  • If no appropriate measures was taken in response to this report:
    • If one of the competent authorities has been seized (DGCCRF: titleContent, ...) after a period of 3 months from the end of a period of 7 working days from the date of reporting
    • 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 alert
  • In case of serious and imminent danger
  • In case of imminent or manifest danger to the public interest
  • Where the external report causes the whistleblower to risk of retaliation
  • When the external reporting has no chance of success

Warning  

Whistleblower protection does not apply where public disclosure is prejudicial to the interests of defense and national security.

The Defender of Rights informs, advises, guides and protects whistleblowers. It shall deliver an opinion on whistleblower status.

The Defender of Rights shall direct the whistleblower to the competent authority or authorities.

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

The Defender of Rights is seized by post. You can use the online service below to learn the procedure.

Reach the Defender of Rights (whistleblowers) by mail

Public Health-Environment

The employee must alert his employer if he considers, in good faith, that the products or manufacturing processes used or carried out by the establishment pose a serious risk to public health or the environment. If this employee is a member of the ESC: titleContent, special provisions shall apply. In all cases, these employees are afforded specific protection.

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The employee is not a staff representative at the CSE

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

The alert shall be recorded in writing in a special register with numbered pages.

This alert is dated and signed.

It shall contain the following information:

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

The employer shall inform the employee who has sent him the alert of the action he has taken on it.

The employee is a staff representative at the CSE

The employee representative at the EESC who observes, in particular through a worker, that the products or manufacturing processes used or carried out by the establishment pose a serious risk to public health or the environment and immediately alerts the employer.

The alert shall be recorded in writing in a special register with numbered pages.

This alert is dated and signed.

It shall contain the following information:

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

The employer shall examine the situation together with the employee representative at the ESC who has forwarded the alert to him and inform him of the action he is taking on it.

Please note

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

Public health or environmental warnings may not be grounds for punishment, dismissal or action discriminatory.

Moreover, the employee who has alerted his employer on this subject cannot be held liable (civilly or criminally) for any damage caused by his report.

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