The judgment delivered on 1is February by the social chamber of the Court of Cassation very opportunely opens a small door which should allow whistleblowers to escape the endemic slowness of French justice. Need we recall that the State is regularly condemned for violating Article 6 of the European Convention on Human Rights, which enshrines the right to be tried in a ” reasonable delay “ ?
With regard more specifically to whistleblowers who may be victims of dismissal in retaliation for their whistleblowing, the employment tribunal process rarely lasts less than eight to ten years. This is why the legislator intervened in December 2016, within the framework of the Sapin II law, since amended by the so-called Waserman law of March 21, 2022, to give the industrial tribunal judge an area of intervention specific to hear the contestation of such dismissals and the right to reinstatement.
As whistleblowers are rightly considered an essential cog in our democratic societies, this was the least that the legislator could do to help them have their rights recognized within an (almost) reasonable time, since even in the As part of a summary procedure, it takes three to four years before reaching a final decision in the event of an appeal or even cassation.
But by conferring this specific competence on him by the law of December 9, 2016, what room for maneuver did the legislator want to confer on the industrial tribunal judge? Two conceptions were opposed, one restrictive, the other undoubtedly more protective of whistleblowers and, beyond that, of the general interest.
Favorable burden of proof regime
The first related to the letter of Article R. 1455-6 of the Labor Code, which only allowed the judge in chambers to consider that a dismissal was discriminatory if the facts reported constituted a “manifestly unlawful disorder ». Classical competence of the judge in summary proceedings, who thus refuses to examine the merits of the case and who declares himself competent only insofar as the illegality is ” manifest “, since he is the judge of the evidence.
However, when a company seeks to dismiss a whistleblower in retaliation, the challenge is to disguise the triggering event explaining its decision to dismiss by reporting, for example, that the employee allegedly committed faults in the execution of his contract or by raising trivial interpersonal grievances. It is to this restrictive conception that the social chamber of the Court of Cassation has just brought a halt, by devoting the second conception, considerably more protective and aligned with the spirit of the legislator.
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