2023-05-29 13:32:17
“Choosing to speak was moral, family, professional, and financial suicide”, judges Céline Boussié retrospectively. The former employee of the medico-educational institute (IME) of Moussaron, in the Gers, paid a high price for having denounced the abuse suffered by eighty children with multiple disabilities in this establishment in 2013. Her words have however been confirmed by a survey by the Midi-Pyrénées Regional Health Agency, the same year. But they earned him “a campaign of denigration and humiliation”then a dismissal for “unfit for any position” in 2014.
It was ten years ago. The status of whistleblower did not yet exist in French law. It was the Sapin II laws in 2016, then Waserman in 2022, which gave it a legal existence, allowing it to offer protection to those who took this risk. Since then, between 2021 and 2022, the number of referrals to the defender of rights has increased by 51%, according to her report published on April 17. Since September 2022, around thirty people have asked human rights defender Claire Hédon to issue an opinion on their quality as whistleblowers.
It is up to the judge to then grant this status to a whistleblower. The whistleblower is then safe from prosecution. He cannot be blamed for “breach of business secrecy” or for the concealment of documents which allow him to prove his accusations.
Céline Boussié is the first to have been released after being attacked for defamation. It was in 2017, in a lawsuit brought against her by her former employer.
Rebalance the game
Whistleblowers are also protected against retaliation. In theory, they cannot be fired or laid off. And if he is sued for defamation or has to fight the industrial tribunal, the whistleblower can be helped to cover his legal costs, or even support himself. “It is a new capacity of the judge, which makes it possible to rebalance the match between David and Goliath”explains Sylvain Waserman, author and rapporteur of the law.
“There are three criteria to be met to be recognized as a whistleblower: good faith, denunciation of an attack on the general interest, and the absence of direct financial compensation”summarizes the lawyer Pierre Farge, author of the essay The whistleblower is not an informer (1). In other words, the person must not have any harmful intent, receive no compensation for reporting, and report a fact covered by the law.
It’s not about“a simple dysfunction in the company”, specifies Cécile Barrois de Sarigny, assistant to the defender of rights in charge of supporting whistleblowers. It should also be noted that only natural persons can benefit from this status: citizens, employees… but not associations.
41 authorities can collect a report
Employees can choose the channel that seems most appropriate to them to report crimes or misdemeanors that they have witnessed since the 2022 law. “They no longer have the obligation to first report the facts internally in their company or administration, but can turn directly to an external authority”details Pauline Delmas, legal manager of the House of whistleblowers, an association which accompanies them and informs those who wish to make a report.
Structures that employ more than 50 people are required to provide their staff with a secure channel for collecting reports. The 2022 texts also list 41 external authorities to which an alert can be sent. For example, a report concerning digital technology can be sent to the National Information Systems Security Agency, or to the National Commission for Computing and Liberties (Cnil). “In France, we now have the best protection for whistleblowers in Europe, welcomes Sylvain Waserman. It’s not me saying it, it’s Transparency International”.
From law to practice
But not everyone is of this opinion. “On paper, these laws are very nice, but in practice it is not won yet”, believes for her part Céline Boussié. Pauline Delmas, from the House of Whistleblowers, agrees: “According to the testimonies we receive, the life of whistleblowers remains an obstacle course. The rules for obtaining the status are more flexible. But there is a gap between law and practice. »
It is especially on the financial side that the law sins, while reports often compromise the economic security of their authors. Céline Boussié’s career is the perfect illustration of this. After her dismissal in 2014, the single mother only had some months “not even twenty cents to feed his children”. Her financial situation has since improved, but she was never able to work again.
Towards automatic help
A decision of the Court of Cassation of February 1, 2023 could provide a solution. From now on, a judge referred to in summary proceedings by a whistleblower just after his dismissal can force the employer to reinstate him pending the trial on the merits.
For Sylvain Waserman, this “weapon of mass deterrence” makes it possible to prevent companies or administrations from getting rid of employees whose revelations bother them. “Given the context of violence that I experienced in the establishment, how could I have been reintegrated? »wonders however Céline Boussié.
The defender of rights Claire Hédon and the House of whistleblowers plead for their part for the automatic granting of legal aid to anyone who can be recognized as a whistleblower.
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