Who are the whistleblowers?
According to international law, a whistleblower is "any person who makes reports or reveals information concerning threats or harm to the general interest in the context of his employment relationship, in the public or private sector". A definition established in 2014. This can relate to crimes or misdemeanors, miscarriages of justice, corruption, breaches of security, public health or the environment, abuse of power, illegal use of public funds, serious mismanagement, conflicts of interest or the concealment of related evidence.
What protection for whistleblowers?
Whistleblowers are protected against professional reprisals and thus benefit from a reduced burden of proof. They also benefit from the regime of penal irresponsibility in the event that the report has resulted in the violation of a protected secret.
Is it illegal to be a whistleblower?
Article L. 1132-3-3 of the Labor Code prohibits any discriminatory measure (from recruitment to dismissal, including access to an internship or training), direct or indirect, against a person reporting an alert in compliance with the law.
How do I get whistleblower status?
The employer must set up a special register and establish a procedure for collecting reports. The procedure specifies the following information: How the whistleblower addresses his report to the direct or indirect superior, to the employer or to the referent.
How to exercise a right of alert?
To exercise their right of alert, an employee can go through the Social Enterprise Committee (CSE): In this case, the CSE must immediately notify management in writing of this alert. An investigation is then launched by the management of the company with the representatives of the CSE to identify the nature of the danger.
How to set up a right to alert?
According to the labor code, the CHSCT member who wants to use his right to alert must do so in writing. The document must be dated, signed and contain three important information: the workstation (s) concerned, the nature of the danger and its cause, the identity of the potentially exposed employees.
What does the social and economic committee's (CSE) right to alert consist of?
The members of the Social and Economic Committee (CSE) have several alert procedures allowing them to act when they become aware of information or worrying facts. They alert the employer in particular in the event of serious and imminent danger and in the event of damage to the physical and mental health of employees. Procedures vary depending on the size of the business.
Right to alert in the event of an infringement of the rights of individuals
When a member of the CSE notices, in particular through the intermediary of an employee, that there is an infringement of the rights of persons in the company (moral harassment for example), he immediately contacts the employer. The employer immediately proceeds to an investigation with the member of the CSE. He must take the necessary measures to remedy the situation. The member of the CSE seizes the industrial tribunal if the employer does not take any action or in the event of disagreement on this infringement. The employee concerned gives his agreement for this process.
Right to alert in the event of serious and imminent danger
The CSE member who uses his right to alert must immediately inform the employer and enter this alert in writing in the register of serious and imminent dangers. The special register where alerts are recorded is opened by the employer. The pages of this register are numbered. This alert is dated and signed. It shows the following information:
Workstations affected by the cause of the observed danger
Nature and cause of this danger
Name of exposed workers
The employer immediately investigates with the member of the CSE who triggered the alert. He must take the necessary measures to remedy the situation. At the end of the investigation, an information sheet is sent to the labor inspector. In the event of disagreement between the employer and the CSE member, the employer convenes the CSE within 24 hours. The labor inspector and the prevention service officer of the Pension and Occupational Health Insurance Fund (CARSAT) are informed and can attend the meeting. The labor inspector can put the employer on notice to remedy the situation.
Right of alert in the event of a serious risk to public health and the environment
A member of the CSE who notices a serious risk to public health or the environment in the company must notify his employer. The alert is recorded in writing in a special register. The special register where alerts are recorded is opened by the employer. The pages of this register are numbered. The alert is dated and signed. It shows the following information:
Products or manufacturing processes used or implemented by the establishment which the worker believes in good faith to present a serious risk to public health or the environment
Possible consequences for public health or the environment
Any other information useful for assessing the alert recorded
Responsibility of the employer
Violations of health and safety rules may engage the responsibility of the employer.
Each violation is punishable by a fine in accordance with the labor code.
A statute in international law?
Whistleblowers have become an international issue, in particular because of the nature of the revelations made but also their potential protection or their presence in international organizations. For many commentators, international law therefore presents itself as a necessary basis for the development of minimum protection. It is therefore necessary to reflect on the optimal institutional and normative framework to determine this status as well as what it should contain.
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