FRANCE Law and Practice Contributed by: Eva Kopelman, Ségolène Cox and Alexis Alié-Sandevoir, Axipiter
4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter Under French law, employers have a general duty of security ( obligation de sécurité ) under Article L. 4121- 1 of the Labour Code, which requires them to take all necessary measures to protect employees’ health and safety. This obligation applies throughout the internal investigation and includes protecting the reporter from potential retaliation, pressure, or intimidation. Mandatory and Recommended Protective Measures Employers must take appropriate steps to ensure the reporter can continue working safely during the inves - tigation. In practice, this may include the following. • Immediate referral to the occupational physician, who may recommend adjustments to duties, work - ing hours, or workspace. • Provisional organisational measures designed to avoid direct contact between the reporter and the respondent. These may involve: • temporary leave for the respondent with full pay (Cass. soc., 8 March 2017, No 15-23.503); • temporary reassignment of the respondent to a dif - ferent team or role (Cass. soc., 20 December 2006, No 04-46.051); or • placing the respondent on remote working arrange - ments (Defender of rights, framework decision No 2025-019, 5 February 2025). These measures do not constitute disciplinary sanc - tions. They are justified exclusively by the employer’s duty to ensure a safe working environment and to prevent potential interference with the investigation. Priority Given to Measures Affecting the Respondent The Defender of Rights recommends that protective measures should, as a matter of priority, impact the respondent, not the reporter. Adjusting the reporter’s working conditions – unless strictly necessary and car - ried out with their explicit consent – may be seen as: • stigmatising the potential victim; or
• constituting unlawful retaliation, prohibited by Arti - cles L.1152-2 and L.1153-2 of the Labour Code. The French Supreme Court has held an employer liable where, despite sanctioning the harasser, the employer proposed that the victim change depart - ments (Cass. soc., 17 February 2021, No 19-18.149). Legal Consequences of Taking (or Not Taking) Protective Measures • If the employer fails to take protective measures, it may be held liable for breach of their obligation of security. This can lead to damages, construc - tive dismissal claims, or recognition of workplace harassment. • If the employer takes protective measures inap - propriately, measures affecting the reporter without necessity or consent are at risk of risk being char - acterised as retaliation or discriminatory treatment, exposing the employer to significant legal liability. 4.2 Protection of the Respondent Under French law, employers have a duty to protect all employees, including the respondent, throughout an internal investigation. This obligation stems from the employer’s general duty of security above men - tioned and from the need to respect the respondent’s fundamental rights, including dignity, privacy, and the presumption of innocence. Measures That Must or May Be Taken to Protect the Respondent Employers should implement measures designed to preserve the respondent’s rights and prevent any undue harm resulting from the investigation. Key measures include the following. • Respecting the presumption of innocence and avoiding any premature characterisation of the facts. • Preserving the respondent’s dignity and reputation, for example by: (a) ensuring the strict confidentiality of the investi - gation; (b) preventing disclosures to third parties not involved in the process; or (c) reminding all participants of their duty of
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