French Employers May Decline Internal Investigations for Misconduct or Noncompliance

The Défenseur des Droits published on February 5, 2025 a framework decision confirming that employers are not required to conduct an internal investigation unless they receive claims of discrimination or sexual harassment that require further investigations to take protective measures aiming to safeguard the employees’ health and safety. This decision follows the French Supreme Court’s recent ruling that absolved employers of liability for failing to implement an internal investigation of moral harassment claims.

The employer’s duty of care toward employees is a case law-based construction first affirmed by the Highest Judicial Court in the French legal system in a February 2022 ruling. In this decision, the French Supreme Court held that, by virtue of the employment agreement between the employer and the employee, the employer is under a duty to safeguard the employee’s health and safety, especially in relation to occupational diseases resulting from products manufactured or used by the company. This decision was initially aimed for risks related to asbestos.

Since then, the employer’s obligation to protect the employees’ health and safety has been applied to all aspects of the employer-employee relationship where the employees could be exposed to risks of harm to their mental and physical health.

Under article L. 4121-1 of the French labor code, the employer is, in particular, required to take necessary measures to guarantee the workers’ safety and protect their mental and physical health.

CAN EMPLOYERS SATISFY SAFETY OBLIGATIONS WITHOUT CONDUCTING INTERNAL INVESTIGATIONS?

For years, French courts have set precedent that seemed to affirm employers must conduct internal investigations to fulfill their obligation to protect the health and safety of their workers. These investigations may be conducted by an internal service—whether in collaboration with the works council or independently—or by external experts, including lawyers, when an employee raises harassment or discrimination claims, for example. However, it is now clear that the use of internal investigations is also a tool for assessing the employer’s liability in relation to the concerns raised by the employees.

In a recent case, the French Supreme Court held that internal investigations are not a necessary step to protect the employees if other adequate and protective measures were taken to ensure the employees’ health and safety in the workplace. In doing so, the French Supreme Court did not entirely exclude the employer’s obligation to conduct internal investigation on allegations of employee misconduct but reminded them that internal investigations are only one specific tool, among others, aiming to protect the employees and that if appropriate measures are taken, the investigation will not be required. In its recent framework decision, the Défenseur des Droits adopts a similar approach, while still reminding employers of the rules pertaining to the implementation of an appropriate internal investigation.

WHAT SHOULD EMPLOYERS ASK TO ASSESS WHETHER THEY MUST CARRY AN INTERNAL INVESTIGATION?

An internal investigation is mandated when the facts reported by the employee remains unclear and/or the employer does not have certainty on the situation. However, it stems from the Défenseur des Droits’ framework decision that after receiving the employee’s report, if the employer is satisfied that the report suffices to have a clear and complete understanding of the facts alleged, no further investigation will be necessary.

In assessing the need to carry out an internal investigation, the employers must quickly answer the following questions:

• Are the facts complex?
• Does the situation involve a small or a large group of employees?
• Does the subject present an immediate risk of harm to the reporting individual or other employees?
• Is the reporting individual still working or is s/he on sick leave?
• Did the events take place over several years or a short period of time?
• Do the facts involve different departments, different companies, or employees working in different countries?
• Has the concern already been raised by the reporting employees in the past?

Depending on the answers to these questions, the employers will indeed be required to conduct an internal investigation to uncover the alleged facts and take appropriate measures. In addition, any situation that could expose the employers to harassment and/or discrimination claims should prompt them to start an internal investigation to document all the steps taken to protect the employees and take remedial measures.

CONCLUSION

It is recommended to carry out internal investigations when no other appropriate tools are available to uncover the facts raised by the employees. Notwithstanding this, the best practice would still be to conduct an internal investigation to document the steps taken by the employer to protect the employees’ health and safety and take remedial measures, especially in the face of potential liabilities absent any investigation.