The protective status of the whistleblower prohibits any sanction and in particular any dismissal against an employee who would intervene in retaliation for the reports and disclosures made on the illegal practices of his employer.
It is on the basis of this protective status provided for by the law that the whistleblower is well-founded to request the nullity of his dismissal and his reinstatement within the company that employed him.
The question then arises as to whether the interim relief judge, who is competent to take precautionary measures to put an end to a manifestly unlawful disturbance even in the presence of a serious dispute, but who is not seized of the merits of the dispute, has the power to rule on the real and serious nature of a dismissal in the context of an emergency procedure.
The French Supreme Court ruled for the first time, in a judgment of 1 February 2023, on the role of the interim relief judge seized of a dispute relating to the dismissal of a whistleblower and the adjustment of the burden of proof.
Firstly, it confirms that the interim relief judge is competent to order the continuation of the employment contract in the event of dismissal that is automatically null and void when it is established that it was pronounced in disregard of the whistleblowers’ protective status, even in the presence of a serious challenge. It specifies that it is up to the interim relief judge to
Verify whether the elements submitted by the employee allow for the presumption that he or she has reported an alert in compliance with the legal provisions governing whistleblowers, and if so to,
Examine whether the employer can prove that the decision to dismiss is justified by objective factors unrelated to the employee’s statement or testimony.
This decision, which places the burden of proof on the employer and adopts a broad conception of the investigative powers of the interim relief judge, ensures effective protection for whistleblowers, whereas the judges hearing the case at first instance and on appeal considered that the examination of the real and serious nature of the dismissal fell within the competence of the judges on the merits, in the absence of the employee demonstrating an obvious link between his warning and the dismissal, and not within the competence of the interim relief judge, a judge of the emergency and the provisional nature of the proceedings.
Thus, a whistleblower can take advantage of an accelerated procedure to have his dismissal annulled.
This solution extends the role already recognised to the interim relief judge, who is competent to pronounce the provisional reinstatement of employees:
dismissed in case of violation of the protective status of staff representatives;
dismissed after denouncing acts of moral harassment;
or whose fixed-term contract was terminated early following legal action to obtain the requalification of the employment relationship as a permanent contract.
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[1] Article R. 1455-6 du code du travail
[1] Cass. soc., 1er février 2023, FS-B n°21-24.271
[1] Articles 6 à 8 de la loi n°2016-1691 du 9 décembre 2016 relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique, modifiée par la loi n°2022-401 du 21 mars 2022 visant à améliorer la protection des lanceurs d’alerte
By Jennifer Carrel, partner and Agathe de Champsavin, associate