FRANCE Law and Practice Contributed by: Eva Kopelman, Ségolène Cox and Alexis Alié-Sandevoir, Axipiter
Non-Mandatory But Strongly Recommended Investigations Outside these specific obligations, there is generally no statutory requirement to open an internal investiga - tion, including in harassment cases. Recent case law confirms that: • an employee may be dismissed for harassment without a prior internal investigation (Cass. Soc., 14 February 2024, No 22-14.385); and • an employer does not breach its health and safety obligations if it has implemented sufficient meas - ures to protect the employee, even without con - ducting an internal investigation (Cass. Soc., 12 June 2024, No 23-13.975). However, conducting an internal investigation is strongly recommended, particularly in cases of alleged harassment, due to: • the employer’s health and safety obligations (Article L.4121-1 Labour Code); • jurisprudence requiring immediate measures to stop harassment (Cass. Soc., 1 June 2016, No 14-19.702); • the National Interprofessional Agreement of 26 March 2010, which provides that complaints should be followed by an investigation; • case law indicating prompt investigation is appro - priate when an employee alleges being a victim or witness of harassment (Cass. Soc., 29 June 2011, No 09-70.902); and • the fact that such investigations also serve as evidence regarding measures taken to stop harass - ment and the justification for any disciplinary action against the alleged perpetrator. Employer Discretion to Conduct an Investigation Outside these circumstances, the employer may open an investigation at its discretion, under its manage - ment and disciplinary powers, or to protect the com - pany’s assets and interests. 1.3 Communication Channels In France, employers are not legally required to estab - lish dedicated reporting channels for employees.
Article 4.2 of the National Interprofessional Agreement of 26 March 2010 recommends that an appropriate procedure can be implemented to identify, understand, and address harassment and workplace violence. In practice, in the absence of a statutory framework, employees raise concerns through a variety of chan - nels, including verbally, in writing, by email, or via the company’s internal messaging system. Reports may be made to different recipients, such as colleagues, line managers, HR representatives, senior manage - ment, employee representatives, or occupational health doctors. Employees may submit reports anonymously; how - ever, taking immediate and effective action can be more challenging when the report is anonymous. Regardless of the channel used, once the employer becomes aware of a concern, they must act promptly, which typically includes initiating an internal investiga - tion if appropriate. 1.4 Responsibility In France, the rules regarding who should conduct an internal HR investigation depend on the circum - stances. When a report originates from a member of the CSE under their right of alert, the employer must con - duct the investigation with that CSE member (Article L.2312-59 Labour Code). Outside this legal require - ment, the employer may conduct the investigation internally or appoint an external investigator, as there are no statutory rules on the composition of the inves - tigation team. The French Ministry of Labour recommends ensuring a plurality of perspectives. The investigation may be conducted jointly by a management representative and an employee representative. If the company has no employee representatives, a volunteer employee may be selected. Care should be taken not to assign the investigation to employees working in the same department as the alleged victim or perpetrator, to their direct supervisors, or to anyone whose involve - ment could compromise the investigation’s impartial - ity (Ministry of Labour Guide, 8 March 2019).
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