FRANCE Law and Practice Contributed by: Eva Kopelman, Ségolène Cox and Alexis Alié-Sandevoir, Axipiter
Legal Risks if the Employer Takes Protective Measures Improperly If measures taken to protect the respondent are dis - proportionate, unjustified by the needs of the investi - gation, or perceived as shielding the respondent, then the employer may be accused of: • lack of impartiality; • obstructing the investigation; or • favouring the respondent, which could undermine the credibility of the process and potentially expose the employer to liability vis-à-vis the reporter. 4.3 Measures Against the Respondent The primary purpose of an internal HR investigation is to determine whether the alleged conduct actually occurred. Accordingly, it is generally inadvisable to impose disciplinary measures prior to the conclusion of the investigation and the issuance of the investiga - tion report. Risks of premature disciplinary action include: • imposing a sanction for conduct that ultimately proves unfounded; • exposure to claims by the employee for unjustified disciplinary measures; and • potential re-qualification of a dismissal as deprived of real and serious cause. In this regard, the French Supreme Court has held that a disciplinary sanction imposed prematurely, without awaiting the outcome of the disciplinary procedure, constitutes a breach of the employer’s duty of protec - tion (Cass. Soc., 6 July 2022, No 21-13.631). However, it is possible, and advisable, to implement precautionary measures during the course of an inter - nal investigation to protect the alleged victim, while avoiding premature disciplinary action against the respondent (see 4.1 Protection of the Reporter ). It is worth noting that an internal investigation should only be initiated if the report or complaint requires further examination. If the employer already possess - es sufficient evidence demonstrating the reality and extent of the alleged misconduct, and this justifies disciplinary action, the disciplinary procedure should
discretion. Article 4.2 of the National Interpro - fessional Agreement (ANI) of 26 March 2010 explicitly states that: “It is in everyone’s interest to act with the necessary discretion to protect the dignity and privacy of each person. No in - formation, other than anonymised information, should be disclosed to parties not involved in the matter”. • Protecting the respondent’s health, including: (a) providing contact details for the occupational physician if the investigation is causing distress or impacting the respondent’s wellbeing; and (b) implementing temporary organisational meas - ures (eg, changes in reporting lines or remote working) where appropriate, provided they do not amount to punitive treatment. These measures must remain strictly necessary and proportionate, to avoid creating the impression of preferential treatment. Internal Communication, Where Necessary If rumours or speculation circulate within the organisa - tion, the employer may issue a limited internal com - munication. The communication should remain neutral and factual, indicating that: • an internal investigation is ongoing; • discretion is required to maintain the integrity of the investigation; and • any conclusions will be drawn only at the end of the process. This type of communication helps protect the respond - ent from reputational harm while preserving the fair - ness and confidentiality of the process. Legal Risks if the Employer Does Not Protect the Respondent Failure to take appropriate measures may expose the employer to: • liability for breach of its obligation to protect the respondent’s physical or mental health; • claims for moral harassment if rumours, hostility, or stigmatisation develop in the workplace and the employer remains passive; and • claims for violation of privacy or dignity.
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