In a decision of November 4th 2020 (no. 18-15.669), the Court of Cassation stated that the decision of the Court of Appeal declaring a dismissal null and void on the basis of whistleblower protection must be overturned if it has not been established "that the employee had related or testified to facts likely to constitute a misdemeanour or a crime" (Ruling no. 969 of 4 November 2020, 18-15.669).
The stakes are high because if the conditions are met to benefit from whistleblower status, protection is provided by legislation.
Cf. our article Whistleblowers: what protection? (https://www.village-justice.com/articles/lanceurs-alerte-quelle-protection,32074.html)
1) The Court of Cassation's decision of 4 November 2020: the status of whistleblower is conditional on the testimony of facts likely to constitute a misdemeanour or a crime.
In a decision of 4 November 2020 (No. 18-15.669), the Court of Cassation overturned the Versailles Court of Appeal's decision of 27 February 2018.
The employer argued that "The nullity of dismissal based on the employee's denunciation of unlawful conduct or acts observed by him in the workplace can only be declared null and void for violation of his freedom of expression if the facts thus reported are such as to characterise criminal offences for which his employer is responsible; that by granting the employee the status of "whistleblower" in the absence of the slightest indication of criminal misconduct on the part of the employer, the Court has once again infringed the provisions of Article L1132-3-3 of the [French] Labour Code".
In its ruling of 4 November 2020, the Court of Cassation, in substance follows the reasoning of the plaintiff in cassation.
In fact, the Social Chamber, with reference to Article L1132-3-3 of the [French] Labour Code, in its wording derived from Law no. 2013-1117 of 6 December 2013, states that "According to this text, no employee may be sanctioned, dismissed or be the object of a discriminatory measure, directly or indirectly, for having related or testified, in good faith, to facts constituting a crime or a crime of which he or she would have become aware in the performance of his or her duties.”
It notes that "In order to convict the employer to pay various sums to the employee and the trade unions, the decision holds that the facts of the infringement of freedom of expression in the context of exchanges with a trade union were revealed through the internet media when the disputed recording was broadcast on 21 March 2016 and then during the interview between the employee and a journalist on 22 March 2016, whereas M. W... had personally observed in advance that his employer was calling into question his right to free communication with Renault's trade unions, in light of the comments made by the Eurodecision company director during the informal interview on 16 March 2016 and the disciplinary procedure with protective dismissal initiated on 18 March 2016 and followed by a warning and then his dismissal for serious misconduct.
The decision infers that the employee is entitled to invoke the status of whistleblower and concludes that, pursuant to Articles L1132-3-3 and L1132-3-4 of the [French] Labour Code, the dismissal should be declared null and void.”
However, the Court of Cassation did not follow the reasoning of the Versailles Court of Appeal and overturned the ruling, stating that by "Ruling thus, without finding that the employee had reported or testified about facts likely to constitute a misdemeanour or a crime, the Court of Appeal violated the aforementioned text".
Indeed, according to the Court of Appeal, in order to benefit from whistleblower status, the facts recounted or testified to by the employee must be likely to constitute a misdemeanour or a crime, which is not the case here.
Thus, the Court of Cassation, in a decision of 30 June 2016 (no. 15-10.557), had already declared a dismissal null and void, which "was motivated by the fact that the employee, whose good faith could not be called into question, had reported to the public prosecutor facts that could be qualified as criminal offences committed within the association".
See our article on Whistleblowers: nullity of the dismissal of an employee who, in good faith, had denounced acts that could be classified as criminal (https://www.village-justice.com/articles/Lanceurs-alerte-Nullite-licenciement-salarie-ayant-denonce-bonne-foi-des-faits,22782.html).
To read all the article, please click on the link below
Source : Website of the Court of Cassation
Cass. Soc. 4 Nov. 2020, n° 18-15669
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Traduction : Giulia Marcie
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