The adoption in France of the Law n°2016-1691 of 9 December 2016, on transparency, the fight against corruption and the modernization of economic life, known as the “Sapin II Law”, has led to the recognition of the status of whistleblowers and the creation of a framework providing numerous rights.[1] However, some considered this framework inadequate when dealing with the practical difficulties whistleblowers encounter, particularly regarding protection and support.[2] Thus, to address these issues and to transpose the European Parliament and Council’s Directive (EU) 2019/1937 of October 23, 2019, on the Protection of persons who report breaches of European Union law,[3] the French Parliament adopted Law n°2022-401 of 21 March 2022, known as the “Waserman Law”, to improve the protection of whistleblowers.

While legislators have developed the law, French judges have also worked to provide the details and clarifications needed to define precise regulations governing whistleblowers.[4] In this regard, on 1 February 2023, the French Supreme Court (hereinafter “Cour de cassation”) issued a decision strengthening whistleblower’s protection in case of retaliatory dismissal by their employer, in the context of a case involving the company Thales SIX GTS France (hereinafter “Thales”) and one of its employees.

The Cour de cassation‘s decision dated 1 February 2023 revisits the jurisdiction of the juge des référés to rule on the substance of a whistleblower’s dismissal following the reporting of an alert, and the lightened burden of proof that whistleblowers benefit in the context of an appeal against such dismissal.

The Cour de cassation considered that the juge des référés had jurisdiction to rule on the substance of a dismissal following the reporting of an alert

In line with the Waserman Law, which reminds and reinforces the prohibition of retaliatory measures against whistleblowers,[5] the Cour de cassation issued a decision on 1 February 2023, in a case in which an employee allegedly suffered numerous retaliatory measures before finally being dismissed, following a denunciation she made of facts likely to be qualified as corruption and influence peddling.[6]

Based on article 12 of the Sapin II law,[7] the employee referred the case to the juge des référés for recognition of her status as a whistleblower and for the annulment of her dismissal, as she considered it to be a retaliatory measure taken after her alert. She wanted to be reinstated within Thales and paid the salaries she had been deprived of.[8]

The Emergency Procedure of the Labor Court (hereinafter “formation des référés du conseil des prud’hommes”) and the Versailles’ Court of Appeal,[9] considered that it was not possible to establish a clear and unequivocal link between the whistleblower’s alert and the dismissal of the employee, nor was it possible to establish retaliation measures taken in violation of her whistleblower status, and therefore referred the assessment of the dismissal reason to the trial judges.[10]

The whistleblower brought an appeal before the Cour de Cassation, in which she argued that such a decision violated articles R1455-6,[11] L1132-3-3,[12] and L1132-4[13] of the French Labor Code, in that the the juge des référés should have reviewed the just cause of the dismissal, and, more specifically, all the evidence provided by Thales to prove that its decision to dismiss was justified by objective factors unrelated to its alert.[14]

Indeed, her lawyers insisted on the fact that Article 12 of the Sapin 2 law gave an exceptional and derogatory jurisdiction to the juge des référés to rule on the substance of a dismissal following the reporting of an alert and not simply to determine whether the existence of a clear link between the dismissal and the alert constituted a manifestly unlawful disturbance.[15] Moreover, they emphasized that the said Article, referring directly to Article R1455-6 of the French Labor Code, could only imply that the juge des référés had the capacity to order the reinstatement of an employee.[16] They consider that this is a necessary protection for whistleblowers in view of the procedures on the substance’s length, which take place too late to effectively protect whistleblowers.[17]

Finally, the Cour de cassation followed the same approach, ruling that the juge des référés, even in the presence of a serious dispute, had to put an end to the manifestly unlawful disturbance resulting from the dismissal pronounced in retaliation for the whistleblower’s alert, by assessing whether the elements submitted were sufficient to presume the employee’s status as a whistleblower and, if so, by determining whether the employer could prove that the dismissal pronounced was justified by objective factors unrelated to the employee’s alert.[18]

The Cour de cassation confirmed the existence of a lighter burden of proof for whistleblowers in the event of disputes regarding retaliatory measures taken by their employer

The lighter burden of proof for whistleblowers in the event of disputes regarding retaliatory measures taken by their employer is based primarily on article L1132-3-3 of the French Labor Code. In its Sapin 2 law version, in force when the facts subject of the Cour de cassation’s decision occurred, this article provided that, in the event of a dispute regarding retaliatory measures taken against a whistleblower (i) the latter was only required to provide factual evidence allowing the presumption that he/she had reported or testified in good faith facts constituting an offence or a crime, or that he/she had reported an alert in compliance with Articles 6 to 8 of the Sapin 2 law, and (ii) the employer had to prove that its decision was justified by objective factors unrelated to the whistleblower’s alert.[19]

The Waserman Law amended this article, which now refers to Article 10-1 of the Sapin II law, which provides that, in the event of an appeal against a retaliatory measure, the whistleblower must provide factual evidence allowing the presumption that he/she reported or disclosed information in compliance with Articles 6 and 8, and that the employer, for its part, must now only prove that its decision is duly justified and no longer “justified by objective factors unrelated to the whistleblower’s alert.[20]

The decision of the Cour de cassation, although rendered under the former applicable Article L1132-3-3 of the French Labor Code, came as a timely reminder of the Cour‘s commitment to this principle. Indeed, the Cour de cassation considered that the juge des référés should not only note that the employee had provided evidence allowing the presumption that she had reported an alert in compliance with Articles 6 to 8 of the Sapin 2 law, but should also determine whether the employer had provided proof that its decision to dismiss was justified by objective factors unrelated to the whistleblower’s alert.[21]

This decision, which protects whistleblowers, gives reason to hope that future case law will interpret the new Article 10-1 of the Sapin 2 law restrictively, so as not to exempt employers from proving that their decision to dismiss a whistleblower was not a retaliation to the whistleblowing.