FRANCE Law and Practice Contributed by: Eva Kopelman, Ségolène Cox and Alexis Alié-Sandevoir, Axipiter
It is generally recommended than an internal investi - gation be opened promptly upon becoming aware of potential harassment or misconduct, as this: • allows the employer to clarify the facts and circum - stances of the report; • reinforces the legitimacy of any measures taken following the investigation; and • protects the employer against allegations of failing to act appropriately. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent Under French law, neither statute nor case law requires the employer to inform the respondent that an internal investigation is being initiated in cases of harassment. The French Supreme Court has clarified that an employer is obliged to conduct an impartial investiga - tion when allegations of moral harassment are made, and that such an investigation may be conducted without the respondent’s knowledge without consti - tuting an unfair method of evidence (Cass. Soc., 17 March 2021, No 18-25.597). Nonetheless, except where informing the respondent would pose a clear risk of pressure on alleged vic - tims or witnesses, it is generally advisable to notify the respondent of the investigation. Doing so helps to uphold the principle of contradictory proceedings and ensures procedural fairness. There is no legal obligation for the reporter to pro - vide information about whether an investigation will be opened or on its progress. In practice, however, employers may choose to inform the reporter, particu - larly to reassure them that the report has been taken seriously and is being addressed. Any such com - munication should be balanced carefully to protect confidentiality and avoid prejudicing the investigation. 2.2 Communication to Authorities In France, the initiation of an internal HR investigation does not generally need to be communicated to the authorities, except where the law requires reporting.
Mandatory reporting applies in certain serious situa - tions, including: • crimes such as rape, murder, or terrorism; • violence, abuse, or sexual assault against minors or vulnerable persons; and • child pornography. In these cases, the employer must notify the relevant judicial authorities, such as the police, gendarmerie, or public prosecutor. The information typically pro - vided includes: • the identity of the victim(s), if known; • the identity of the alleged perpetrator, if known; • a description of the alleged facts and circumstanc - es; and • any evidence or documentation collected by the employer that is relevant to the case. Outside of these legally mandated situations, com - municating the opening of an internal investigation to the authorities is optional, and generally not rec - ommended, in order to preserve confidentiality and ensure the proper conduct of the investigation. 2.3 Confidentiality Agreements and NDAs In the context of an internal HR investigation, it is essen - tial that the employer, investigators and all participants maintain strict discretion to protect the dignity and pri - vacy of all individuals involved. Information collected during the investigation must remain confidential. Although French law does not require parties to sign a separate confidentiality agreement or NDA, it is common practice and strongly recommended by the French Defender of Rights to have all interviewees and investigators acknowledge a confidentiality undertak - ing. This formalises the expectation of confidentiality and underscores its importance. Even in the absence of a formal agreement, French law generally imposes a duty of confidentiality on participants in the investigation. Breach of this duty may expose employees or third parties to disciplinary measures or civil liability.
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