Internal Employment Investigations In France: Courts Set The Rules – Health & Safety – France

The conduct of internal investigations has developed rapidly
within French companies in recent years under the impetus of the
law of December 9, 2016, relating to transparency, the fight
against corruption and the modernization of economic life (known as
the Sapin II law). Inevitably, the courts have been regularly
involved in investigations and the evidentiary value of the reports
produced in the context of disputes following the application of
disciplinary sanctions against employees and challenged by the
latter. The French Supreme Court has ruled on practical questions
concerning internal investigations, which are of particular
interest to companies.

This article reviews these issues and the Courts’ responses
and notes some practical recommendations arising from them. It
should be noted that the case law mentioned below essentially
relates to situations of moral harassment, one of the main areas of
internal investigations in the field of employment law.

Is the internal investigation mandatory in all
cases?

Unless the report comes from a staff representative (i.e. an
employee who has been elected by the other employees to represent
them before the employer), the employer has no legal obligation to
implement an investigation and the French Labor Code does not
contain any rules regarding the manner in which the investigation
is undertaken. However, the overriding obligation on the employer
to preserve the health and safety of employees will make the
internal investigation necessary in many cases and particularly in
situations of moral harassment.

In this respect, the French Supreme Court ruled that the absence
of or even the delay in undertaking an investigation, after a
report of potential moral harassment, is a violation by the
employer of its obligation to prevent occupational risks (Cass.
Soc. January 5, 2022, n 20-14.927). If moral harassment is
proven, the employer risks civil and even criminal liability if it
has not taken the appropriate measures to prevent or put an end to
such a situation.

Practical recommendation: the employer must
obviously process any complaint it receives, but we do not
recommend the automatic opening of an investigation. The risk is
that conducting investigation may be a disproportionate response to
the allegations in which case the employer is at risk of liability
for engaging in the unjustified collection of personal data.

Indeed, some situations can be handled in a manner that does not
require the need for the formalities of an internal investigation.
If the facts reported are precise and supported by credible
evidence (e.g. third party statements or other documents) already
held by the employer, no investigation is necessary. The employer
can then initiate a disciplinary procedure directly. If not, an
investigation will be required.

In sensitive situations involving senior employees or staff
representatives, undertaking an external investigation will be
justified to offer the affected employees the necessary guarantees
of confidentiality and neutrality.

In each case, we recommend proceeding in stages, commencing with
a preliminary verification the conclusions of which will make it
possible to assess whether the documents and information collected
in this context are sufficiently serious and of the necessary
gravity to justify a formal investigation.

Can an internal investigation be implemented without the
accused employee being informed and without even being interviewed
in this context?

For the French Supreme Court, an investigation report drawn up
under these conditions does not constitute an unfair mode of proof.
(Cass. Soc. March 17, 2021, n 18-25.597; Cass. Soc. May 27,
2021, no. 19-23984)

The Court of Appeal dismissed the report considering that it had
contravened the principle of fairness in the administration of
evidence, insofar as the investigation had been conducted without
the knowledge of the accused employee.

Article L. 1222-4 of the French Labor Code provides that
« no information concerning an employee personally can be
collected by a device that has not been brought to their attention
beforehand« . The testimonies collected during the
investigation include personal information concerning the accused
employee. The Court of Appeal held that this article did not allow
the undertaking of an internal investigation that had not been
brought to the attention of the accused employee.

However, the French Supreme Court, held that this principle is
not applicable to internal investigations.

In France, the employer has the power to control and monitor the
activity of employees during working hours, but cannot resort to
clandestine monitoring means, i.e., one that has not previously
been brought to the attention of the employees. The Supreme Court
held that an internal investigation is not specifically intended to
control the activity of employees and is therefore not required to
be brought to the prior attention of the employees.

Last year, the French Supreme Court ruled that the fact that an
accused employee did not have access to the elements of the
investigation and to the statements collected during it or that he
was not interviewed or had the opportunity to confront his accusers
was not contrary to the rights of defence or to the adversarial
principle. The Court ruled that the decision taken by the employer
at the end of the investigation and the facts on which it is based
can always, if necessary, be examined by the courts on application
by the employee concerned. (Cass. soc. June 19, 2022, n
20-22.220)

This does not mean that in all cases the accused employee does
not have to be informed that an internal investigation has been
carried out. The adversarial nature of the investigation must, as
far as possible, be preserved with regard to him or her. He or she
should therefore be able to be interviewed during the investigation
in the same way as the complaining employee. Clearly, if the
alleged facts are proved and dismissal envisaged, the accused
employee will be called to a preliminary meeting and will then have
the opportunity to put his or her case forward. However, this
opportunity comes late in the process after the investigation has
been completed and when it is more difficult for the accused
employee to challenge the conclusions already reached, particularly
if this meeting is the first the accused employee knows of the
complaint.

Practical recommendation: we recommend carrying
out a case-by-case assessment, determining in particular whether
there is a real risk of pressure or reprisals against the
complainant or witnesses from the accused employee, bearing in mind
that in the event of a subsequent dispute, the employer must be
able to justify that there were reasonable grounds to apprehend
this risk.

The accused employee should obviously be interviewed if the
investigation has not clearly established the veracity of the facts
alleged and if a doubt remains after the interviews of the
complainant and witnesses have been conducted.

In every case, the accused employee must be interviewed at the
end of the investigation.

Does the internal investigation involve interviewing all
the co-employees or team members (victims or witnesses) of the
accused employee or who have contact with him/her?

No, it is not necessary to interview all the employees.
Accordingly, an investigation conducted on an allegation of
bullying cannot be dismissed on the grounds that only some of the
employees who complained of bullying were interviewed (Cass. Soc.
January 8, 2020, No. 18-20.151). In this case eight out of the
twenty employees concerned were interviewed. In other words, the
fact that only the alleged victims, or even only some of them, were
interviewed does not lead to the conclusion that the investigation
was incomplete.

Determining which people should be interviewed is part of the
process of carrying out the investigation and must be dealt with
even before the start of the investigation. If the investigation is
entrusted to an external legal advisor, a preliminary list of the
people to be interviewed will be agreed with the company in the
engagement letter.

Practical recommendation: we recommend starting
with a limited number of employees (i.e. the complainant(s), and
those in a direct hierarchical relationship with the accused
employee (above and below). The range of interviewees may, if
necessary, be widened subsequently, depending on the results of the
first round of interviews. The confidentiality of an investigation
necessarily implies not involving too many people from the outset,
to prevent rumors from circulating in the company. The same concern
for confidentiality requires employees to be interviewed
individually and separately, avoiding, as far as possible, them
meeting each other coming in to or out of an interview. Direct
confrontations between the complainant and the accused in these
situations are of course to be avoided.

Does the company necessarily have to involve staff
representatives in the investigation?

Not necessarily, as the French Supreme Court has held that an
investigation report cannot be rejected on the grounds that the
investigation was entrusted to the company’s human resources
department and not to the staff representatives (i.e., the social
and economic committee the CSE). (Cass. Soc. June 1, 2022,
No. 21-11.437)

This does not mean that staff representatives have no role to
play in internal investigations, particularly where moral
harassment is suspected. Indeed, the members of the CSE can alert
the employer of any appropriate behavior such as moral harassment
that they observe or of which they are informed by an employee. In
such a case, the employer must immediately conduct an investigation
with the member of the CSE and take the necessary measures to
remedy the situation. Failing this, the complainant employee, or
the staff representatives (if the employee does not object), may
refer the matter to the industrial tribunal.

Practical recommendation: except where required
by law, the involvement of staff representatives should be assessed
on a case-by-case basis depending on the alleged situation. If this
situation relates to moral harassment, the CSE or the CSSCT (i.e.,
health, safety and working conditions commission in companies with
300 or more employees) must be involved in the investigation.
Indeed, the CSE (or the CSSCT) has an essential role in any issue
relating to the health, safety and working conditions of employees.
The investigation will be carried out by an investigation committee
made up of a limited number of members of the CSE and
management.

Apart from these situations, the involvement of staff
representatives may be useful if it appears that they will be able
to provide information on the background of the complaint or
matters that the employer may not be aware of.

Finally, staff representatives should be involved in drafting
the internal company guide defining the procedure and methods of
investigation for guidance of the people who will conduct the
investigations.

Can the testimonies collected as part of the investigation
be anonymous?

Anonymity is a real issue which can raise difficulties if the
allegations are proved, and the resulting sanction taken by the
employer is challenged by the employee before the courts who
question the credibility of the testimonies and thus limit the
evidentiary value of the investigation report.

Many companies do not provide for the anonymity of witnesses.
Some even exclude employees who wish to remain anonymous from the
process mainly out of a concern to avoid exaggeration and
embellishment that may be inherent in anonymous testimonies. Other
companies maintain the possibility of witnesses choosing to remain
anonymous, no doubt fearing that the exclusion of anonymity will
discourage employees from reporting certain behaviors.

French courts refuse to base their decisions « solely or
decisively on anonymous testimonies » (Cass. Soc. 4 July
2018, n 17-18.241). This means that in the event of a dispute
over the disciplinary sanction decided by the employer, the latter
must be able to justify its decision (e.g., dismissal) on evidence
other than anonymous testimonies (e.g. emails or other written
evidence that may be the subject of cross-examination). Failing
this, anonymous testimonies alone will not justify the accused
employee’s dismissal.

That said, it is quite possible to preserve the identity of
employees who testified during the investigation. The employer has
no obligation to communicate to the accused employee the
testimonies collected, nor to indicate the identity of the people
interviewed. In the same way, following the investigation the
employer is only required to convene the accused employee to a
preliminary meeting, to explain to him or her precisely the grounds
of the complaint and to get his or her observations and the
identity of the witnesses does not have to be revealed.

However, if the accused employee challenges his or her dismissal
before the industrial tribunal and the employer has no other
evidence to justify the dismissal apart from anonymous testimonies,
the witnesses must be disclosed.

Practical recommendation: we therefore
recommend, as far as possible, to avoid anonymous testimonies.
Reluctant witnesses should be reminded of their legal protection
against reprisals, sanctions, or dismissal, as well as their rights
relating to their personal data collected in the context of their
interviews.

To convince those employees minded refusing to testify if their
anonymity is not preserved, the employer should assure them that it
will not tolerate any reprisal against them and will take all
appropriate measures to protect them. The employer should also
explain that if the employees’ identity cannot be revealed,
their statements will not be considered in the event of a dispute
with the accused employee which may weaken the investigation.

Anonymous testimonies should be collected only in exceptional
circumstances (e.g., where there is a real fear of physical
reprisal). In such a case, the employer must meet the requirements
of the case law and ensure it has enough other evidence to support
its decision such as dismissal for serious misconduct of the
accused employee.

Finally, anonymous testimonies should not be attached to the
investigation report to avoid the employees concerned from being
identified from their statements. Care should also be taken when
drafting the report, that identification is not possible and t that
identifying sentences or references are removed or redacted.

In conclusion:

Investigation reports are now widely accepted by French courts
as having evidentiary value.

Employers are given some leeway in defining the rules for the
conduct of internal investigations. For the courts, the challenge
is to enable employers to act to practical measures to preserve the
health and safety of their employees in the workplace.

In return, investigation reports will be the subject of rigorous
substantive examination by the courts. Accordingly, the protocols
under which the investigation will be carried out need to be clear,
fair, and objective. The investigation report itself should be
drafted carefully in the expectation that it may be the subject of
critical judicial review.

Engaging an external legal advisor experienced in undertaking
investigations (particularly in sensitive situations such as
alleged moral harassment), offers both employers and employees a
guarantee of independence, impartiality, and professional
confidentiality.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.