Adoption of a new law improving the protection of whistleblowers in companies with more than 50 employees. The law implements an EU directive and goes beyond the European requirements.
New whistleblower status
New whistleblower definition
A whistleblower remains a "natural person" (thus excluding legal entities, in particular works councils and associations), with the following clarifications:
- The ambiguous requirement of an alert made "outside any particular interest" that was open to interpretation is replaced by a more precise requirement of an alert made "without direct financial compensation".
- The condition of seriousness required in certain cases (threats or harm to general interests, reporting any violations of international commitments, of the law or regulations) is removed.
- In addition to the violation of an international commitment, of a unilateral act of an international organization based on such a commitment, of the law or regulations, violations of European Union law can now be reported or disclosed; this is also the case for attempts to conceal said violations.
- Until now, a whistleblower was supposed to have a personal knowledge of the facts reported, which was a guarantee of their seriousness. From now on, the Law reserves this condition to information obtained outside professional activities.
- The Law contains a long list of prohibited retaliations (in particular, any violations of fair performance of employment contracts and any forms of discrimination or attacks to a person's reputation)
- In case of retaliation, a whistleblower can obtain its full nullity before the courts. In addition to damages, the Law increases the maximum civil fine for any dilatory or abusive procedures against a whistleblower due to the information reported or disclosed to 60,000 euros.
- The competent authorities now can provide psychological support to the whistleblower. In addition, they can grant temporary financial assistance in the context of an appeal against retaliation and at the expense of the other party. This financial assistance will be offered in the event the whistleblower's financial situation has seriously deteriorated as a result of the alert.
The implementation of the European Directive has expanded the scope of protected persons. Facilitators, defined as any natural person who assists a whistleblower in making an alert or disclosure, will benefit from the whistleblower's protective status against retaliation.
New alert process
Modification of the reporting procedure
The Law abolishes the hierarchy between different channels and offers the whistleblower the possibility to choose one of the first two reporting channels (internal via hierarchical reporting mechanisms or external via referral of the matter to the judicial or administrative authority or the competent professional body). Employers must provide employees with full confidence in their internal reporting mechanisms to minimize the risk of external alerts.
Higher protection of personal data
The procedures implemented to guarantee the confidentiality of the identity of the authors of an alert, of the identity of concerned persons or any third party mentioned in the alert and of the nature of any information gathered, apply at the time of collection but now also during the processing of the alert.
Data relating to alerts may be kept only for as long as strictly necessary and proportionate to the processing of the alert and for the protection of the authors, concerned persons and any third parties mentioned in the alerts, taking into account the time required for any further investigations.
Finally, when personal data relating to alerts is processed, it must be kept in accordance with the provisions of the General Data Protection Regulation (GDPR).
New role for the Human Rights Defender
The Law is supplemented by an organic law, which significantly strengthens the role of the Human Rights Defender:
- Any whistleblower can send a report to the Human Rights Defender
- When the alert falls within its competence, they collect it, process it according to an independent and autonomous procedure and provide feedback to its author;
It can be called upon by any person to give an opinion on their status as a whistleblower;
- Finally, it will present every two years to the French President, the President of Parliament and the President of the Senate a report on the overall functioning of whistleblower protections.
*with the contribution of Fabien Bodereau, intern.
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