2023-09-26 06:00:11
Social right. Solid realism is required when thinking about the status of the “whistleblower”. Because the self-claim of this quality has become commonplace, well beyond the courageous Bayard “without fear and without reproach” taking immense personal and legal risks (civil and criminal liability) in the name of the general interest: to make noise on social networks by collecting monetizable clicks, or to have a quarter of an hour of fame. In law, therefore, not everyone is a “whistleblower”.
A situation that is also specific to that of the employee, as noted by the European Court of Human Rights in Strasbourg on February 14, 2023, which is based on: “On the one hand, the duty of loyalty, reserve and discretion inherent in the relationship of subordination. On the other hand, the position of vulnerability, particularly economic, vis-à-vis the company on which he depends, as well as the risk of suffering reprisals from the latter. »
Given the importance of reputation and its effects on the work community, we must avoid encouraging opportunistic employee behavior that discredits the very idea of an alert going beyond their person. Resulting from the law of March 21, 2022, the absence of “direct financial counterpart » is hardly reassuring. As for bad faith, “it can only result from knowledge of the falsity of the facts denounced, and not from the sole circumstance that the facts denounced are not established” (judgment of the social chamber of the Court of Cassation, September 13, 2023).
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Second specificity: there are already two “alert rights” internal to the employer. That open to members of the social and economic committee (CSE) in the event of an attack on people’s rights and their physical or mental health. The same applies to public health or the environment, “if the employee considers that the products or manufacturing processes used or implemented pose a serious risk to public health or the environment”. It is better to resolve these questions on the spot, and immediately.
Three possible procedures
Third specificity: the labor inspectorate, responsible for monitoring the application of the texts (141,799 observation letters and 4,709 reports were thus transmitted to the public prosecutor’s office in 2022); the industrial tribunal ruling on individual disputes, which do not fall under the alert; without forgetting the staff representatives, specially protected and likely to go beyond the particular case.
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