French Labour Law

CSE Alert Right: Inadmissible for Employees Who Have Left the Company

DAIRIA Law · 2026-07-14 · 9 min

CSE Alert Right: Inadmissible for Employees Who Have Left the Company

By DAIRIA Avocats | Employment Law | Case Comment

On March 18, 2026, the Court of Cassation, social chamber, clarified a crucial admissibility condition for the alert right exercised by a member of the CSE (Comité Social et Économique) in cases of infringement upon employee rights: the employee in question must be part of the company’s workforce at the date of the judge’s referral. This decision clarifies the scope of this protective mechanism and its temporal limits.

Facts of the Case

A member of the CSE of a company exercised their alert right under Article L. 2312-59 of the Labour Code. This statute allows any CSE member who observes, notably through an employee, that there is an infringement upon the rights of individuals, their physical and mental health, or their individual freedoms in the company that is not justified by the nature of the task to be performed nor proportionate to the desired aim, to immediately notify the employer.

In this case, the elected CSE member activated this alert by citing an infringement on the rights of a specifically identified employee. They subsequently alerted the employer, who did not conduct an investigation or remedy the situation, prompting the elected member to appeal to the judgment office of the labor court, acting under the summary proceedings as prescribed by the statute.

However, between the time of the alert and the time the judge was referred, the concerned employee had left the company. Regardless of the cause, their employment contract had been terminated, and they were no longer part of the workforce at the time of the judicial referral.

The court of appeal, nevertheless, deemed the alert right admissible, arguing that the infringement on rights established at the time of exercising the alert was sufficient to support the judge’s jurisdiction, regardless of the subsequent status of the employee within the company.

The question submitted to the Court of Cassation was the following: Can a CSE member exercising the alert right provided for in Article L. 2312-59 of the Labour Code cite an infringement of the rights of an employee who is no longer part of the company’s workforce at the time of the judge’s referral?

This question raised a fundamental issue regarding the purpose of the alert right. Does this mechanism aim to sanction a past infringement, or to terminate a current infringement? The answer to this question determined the admissibility of the action initiated by the CSE member.

Court of Cassation’s Ruling

The Court of Cassation annulled the decision of the court of appeal and established a clear rule. It ruled that a CSE member exercising the alert right provided for in Article L. 2312-59 of the Labour Code cannot cite an infringement of the rights of an employee who is no longer part of the company’s workforce at the time of the judge’s referral.

The highest court based its decision on the very purpose of the alert right. This mechanism aims to end an ongoing infringement of an employee’s rights. It is a preventive and corrective mechanism, not a sanction or posterior compensation mechanism. Therefore, when the employee has left the company, the infringement of their rights within the relationship of employment has, by definition, ceased.

The Court reminds that the judge addressed in the context of the alert right rules in summary proceedings and can order “all measures necessary to put an end to this infringement.” This injunctive power logically assumes that the infringement is ongoing at the time the judge rules, implying that the employee must still be part of the workforce.

This interpretation aligns with the nature of the alert right, which is a rapid intervention mechanism designed to protect employees in post, not a substitute for traditional legal avenues (individual labor actions, union actions, etc.) that remain available for sanctioning or remedying past infringements.

Article L. 2312-59 of the Labour Code organizes the alert right of the CSE in cases of infringement on individual rights. This provision, stemming from the former procedure of Article L. 2313-2 concerning employee delegates, is one of the most important prerogatives of the CSE regarding the protection of individual employee rights.

The procedure unfolds in several stages. When a CSE member observes an infringement upon individual rights, they must immediately inform the employer. The employer must promptly conduct an investigation with the CSE member and take necessary measures to remedy the situation. In case of employer failure or disagreement on the reality of the infringement, the employee or CSE member may refer the matter to the judgment office of the labor court ruling in summary proceedings.

The judge can then order any measures to stop the infringement and attach penalties to their decision. This injunctive power is considerable and gives the alert right significant practical efficacy.

Covered Infringements under the Alert Right

The scope of infringements covered by Article L. 2312-59 is broad. It encompasses infringements upon individual rights (discrimination, moral or sexual harassment, infringement on dignity), physical and mental health (dangerous working conditions, psychosocial risks), and individual freedoms (freedom of expression, dress code, respect for privacy, religious freedom, etc.).

However, these infringements must not be justified by the nature of the task at hand nor proportionate to the intended aim, referring to the classic proportionality test of Article L. 1121-1 of the Labour Code.

Prior Jurisprudence on Alert Right Conditions

The Court of Cassation had previously clarified certain conditions for exercising the alert right. It had notably ruled that the CSE member must sufficiently precisely identify the alleged infringement and the concerned employee (Cass. soc., December 10, 1997, n° 95-42.661). It also recalled that the joint investigation phase is a mandatory prerequisite for referring to the judge (Cass. soc., May 15, 2001, n° 99-10.037).

The March 18, 2026 decision adds a temporal condition to these requirements: the employee must still be in the workforce at the time of the judge’s referral. This condition, which had not yet been expressly established by the Court, logically follows from the purpose of the provision.

It is essential to highlight that the ruling does not leave the former employee without recourse. The alert right is only one of the mechanisms available. The former employee retains the possibility of individually referring to the labor court to recognize the infringement of their rights and obtain compensation. Unions may also act in substitution in certain cases. Only the specific mechanism of the CSE alert right is closed when the employee has left the company.

Practical Interest for Employers

Verify Employee Status Within the Workforce

The March 18, 2026 ruling offers employers a procedural defense in the event of a referral to the judge within the framework of an alert right. Before responding on the merits, employers must systematically verify whether the employee, on behalf of whom the alert is being exercised, is still part of the workforce at the time of the judge’s referral.

Points to Consider:

  • Verify the effective termination date of the concerned employee’s contract;
  • Compare this date with the date of the judge’s referral;
  • If the employee left the company before the referral, raise the inadmissibility of the request based on the March 18, 2026 ruling;
  • Caution: unexecuted notices do not necessarily equate to a departure from the workforce, as the employment contract continues until the notice period ends.

Do Not Neglect the Investigation Phase

While this ruling provides a useful procedural argument, it should not lead employers to neglect their obligations during the preliminary investigation phase. When a CSE member exercises their alert right, the employer must immediately conduct a joint investigation, even if the employee is about to leave the company.

Recommendations:

  • Take each alert seriously and initiate the investigation without delay;
  • Document the entire process: date of alert, identity of the CSE member, nature of the alleged infringement, investigation progress, measures taken;
  • Do not seek to delay by waiting for the employee to leave the company to evade the investigation;
  • Retain evidence concerning the effective departure date of the employee.

Anticipate Departures During Alert Situations

In practice, situations where an alert right is exercised while the employee is in the process of leaving (notice period in progress, ruptures conventionnelles undergoing approval, short-term contracts approaching expiration) may multiply. Employers must be vigilant in these cases.

Best Practices:

  • Maintain precise tracking of ongoing alerts and the contractual situation of concerned employees;
  • Inform the company’s legal counsel as soon as an alert right is exercised for an employee whose departure is imminent;
  • Avoid accelerating a termination procedure to render the alert inadmissible, which could be deemed fraudulent maneuvering;
  • Remind CSE representatives that the alert right has a prospective purpose and cannot target situations involving former employees.

Impact on Relations with the CSE

This decision can serve as a constructive dialogue point with employee representatives. It reminds that the alert right is a tool for protecting employees in post, not a mechanism for retrospective litigation. Employers can encourage CSE representatives to exercise their alert rights promptly, upon observing the infringement, rather than waiting for an advanced stage where the employee may have left the company.

FAQ – Frequently Asked Questions

Can the alert right be exercised for an employee on notice?

Yes, as long as the employment contract has not been terminated. The employee on notice is still part of the company’s workforce. The alert right remains admissible until the effective end date of the employment contract.

Does the former employee lose all recourse?

No. The ruling only closes the avenue of the CSE alert right. The former employee retains the ability to individually refer to the labor court to recognize the infringement of their rights and obtain compensation. The common limitation periods apply.

Can the CSE exercise the alert right for a collective infringement?

Article L. 2312-59 of the Labour Code targets infringements on individual rights. If an infringement affects multiple employees and some are still in the workforce, the alert right remains admissible for those still employed. Only employees who have left the company must be excluded from the request at the time of the judge’s referral.

Can the employer be condemned if they did not investigate, even if the employee has since left the company?

The ruling pertains to the admissibility of the judge’s referral concerning the alert right, not to the employer’s liability regarding their security obligation. The lack of investigation could be challenged in another action (individual employee action, union action), irrespective of the alert right issue.

When is the condition of presence within the workforce assessed?

The Court of Cassation considers the date of the judge’s referral, i.e., the date of submitting the request or summons to the judgment office of the labor court. It is neither the date of the initial alert nor the date of the hearing, but the date of referring to the court.

This article is a legal commentary intended for informational purposes. It does not constitute personalized legal advice. For any specific situations, contact DAIRIA Avocats.

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