In a ruling ‘SNCF’ handed down on December 8, 2023, the Conseil d’Etat ruled that an employee claiming whistleblower status could not be considered to have acted in good faith, on the grounds that he had been unwilling or unable to clarify and support his allegations with factual information (CE, 8 déc. 2023, 435266). In this case, the accusations made were particularly serious, and as the employee also had a protective mandate, his dismissal was subject to prior authorization by the labor inspectorate, a decision subject to review by the administrative courts.
A bit of perspective is in order. Since the Law of March 21, 2022, aimed at improving the protection of whistleblowers, the legal definition resulting from the Sapin 2 law (December 9, 2016) has evolved somewhat. Without going into detail, the requirement for ‘disinterested’ whistleblowing has disappeared, replaced by the requirement for ‘no direct financial consideration’ (it should be noted that it was recently ruled that whistle-blowing employees, for their part, were not subject to this condition – Cass. soc., 13 sept. 2023, 21-22301). The requirement of good faith remains unchanged.
This new definition has been transposed into the French Labor Code in article L.1132-3-3, which now reads as follows: “No person who has testified, in good faith, to facts constituting a misdemeanor or a crime of which he or she has become aware in the performance of his or her duties, or who has reported such facts, can be subject to the measures mentioned in article L. 1121-2“.
The Social Division of the French Supreme Civil Court (‘Cour de Cassation’) recently had occasion to confirm what it meant by “bad faith”, exclusive of the whistleblower protective status. This was an important question, given that a sanction taken in violation of such status would be null and void. In its decision (Cass soc. 13 septembre 2023 N°21-22.301), the Cour de Cassation ruled that “bad faith could only result from knowledge of the falsity of the facts reported, and not from the mere fact that the facts reported had not been established“. It is irrelevant that this case was decided under the previous wording of L.1132-3-3, as the requirement of good faith had not been modified.
The Conseil d’Etat ruling states that “the particularly serious accusations made by Mr. A… in the disputed e-mails are formulated in general and outrageous terms, without the interested party having been able to clarify them in any way. They also form part of a smear campaign directed against his former direct superior, resulting in repeated accusations of illegal practices that Mr. A… has never substantiated with a single factual element, the applicant having, for example, failed to respond to a request for clarification from SNCF’s ethics department, which he had approached in 2013, in allusive terms, with accusations of fraud. Under these conditions, Mr. A… cannot be considered to have acted in good faith“.
At first glance, the definitions used by the two High Courts differ, since the Conseil d’Etat, unlike the Cour de Cassation, does not require the employer to demonstrate that the employee was aware of the falsity of his allegations to establish bad faith.
This reading would be quite surprising, if not shocking: it would mean that the administrative courts, which have jurisdiction over protected employees in this area, would take a broader view of bad faith. Keeping in mind that without good faith, there is no protected status. In short, protected employees would be worse off than unprotected employees. Such an oddity is bound to raise questions.
Another interpretation might be to see the Conseil d’Etat‘s decision as a definition of the “falsity of the facts” as referred to by the Cour de cassation. In other words, the fact that the employee was unwilling or unable to substantiate his accusations with precise factual elements would establish the “falsity” of his allegations. It is not certain that this reading is the right one, but it does seem desirable for reasons of fairness between protected employees and other employees. And it would simplify the situation for employers who are faced with opportunistic “whistle-blowers”, more numerous since the March 2022 Law (we think of those employees who suddenly declare themselves whistle-blowers just when disciplinary proceedings are launched against them).
It should be noted in passing that the wording of L.1132-3-3 refers to the notion of testimony (“No person having testified…). By essence, testimony refers, in the broadest sense, to the declaration by which an individual states his or her personal knowledge of a fact or event. Without a factual element or a precise event, can testimony be considered to exist? Probably not, and this is perhaps also the basis of the Conseil d’Etat‘s reasoning.
No doubt the Cour de Cassation will seize the next opportunity to clarify its position in this respect. In the interests of legal security, we can only hope so, for the protection of ‘real’ whistle-blowers also requires a clear, unified regime.