FRANCE Law and Practice Contributed by: Eva Kopelman, Ségolène Cox and Alexis Alié-Sandevoir, Axipiter
Case law provides further guidance. In some instanc - es, the investigation may be conducted solely by the HR Director (Cass. Soc., 1 June 2022, No 20-22.058) or by a psychologist specialised in psychosocial risks, even if not approved by the Labour Inspectorate (CA Agen, 9 January 2024, No 22/00827). Such investiga - tions may, however, be more easily contested in legal proceedings. Conversely, the French Supreme Court has ruled that assigning an internal investigation to an employee who is in conflict with the individual concerned con - stitutes a breach of the employer’s health and safety obligations (Cass. Soc., 6 July 2022, No 21-13.631). 1.5 Obligation to Carry Out an HR Internal Investigation In France, an internal HR investigation must be con - ducted in certain circumstances, including: • when a member of the CSE exercises their right of alert regarding breaches of individual rights (Arti - cles L.2312-5 and L.2312-59 Labour Code) or in the event of a serious and imminent danger (Arti - cles L.2312-5, L.2312-60, and L.4132-1 et seq); and • when a report is made through a professional alert system established under Law No 2016-1691 of 9 December 2016 (Sapin II), applicable to companies with at least 50 employees. Failure to conduct an investigation in these circum - stances may engage the employer’s liability for breach of their health and safety obligations, and, if the condi - tions are met, could give rise to claims of gross neg - ligence. 1.6 Prohibition on Carrying Out an HR Internal Investigation In France, there are certain circumstances in which an internal HR investigation may not be carried out, either temporarily or at all, as follows. • Interference with ongoing criminal proceedings: An internal investigation may be suspended or limited if it risks interfering with a parallel criminal inves - tigation. A draft law of 29 October 2024 (Bill No 514) is currently under review to regulate internal
investigations conducted alongside criminal pro - ceedings. • Potential breach of fundamental rights or data pro - tection rules: Investigations must respect employ - ees’ fundamental rights and comply with personal data protection laws. • Use of unfair or inappropriate methods: Investiga - tions must be conducted fairly; any improper inves - tigative method could invalidate the process. The necessity of an internal investigation also depends on the circumstances. • An internal investigation should only be initiated if the report requires further investigation (Framework Decision No 2025-019, 5 February 2025). • If the employer already has sufficient knowledge of the facts and the investigation would not provide additional information, immediate protective meas - ures may be taken and disciplinary proceedings may be initiated against the alleged perpetrator. • In most cases of harassment or discrimination, an internal investigation remains necessary, as the facts are often complex and require careful exami - nation. 1.7 Other Cases In cases where an internal HR investigation is neither legally required nor prohibited, the employer must assess whether it is appropriate to proceed. Factors that may inform this decision include: • the severity and complexity of the alleged facts; • potential legal risks, such as exposure to employ - ment tribunal claims; • the need to gather evidence in order to: (a) establish the veracity of the reported facts; and (b) initiate disciplinary proceedings against the al - leged perpetrator; • the potential impact on the workplace climate; and • compliance with applicable internal procedures related to the reported issue. Where there is uncertainty about whether to initiate an internal investigation, legal counsel can advise the employer on the appropriate course of action.
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