French Labour Law

CSE Right of Alert Barred for Employees Who Have Left the Company (French Supreme Court, 18 March 2026, No. 24-15.990)

DAIRIA Law · 2026-09-01 · 11 min

CSE Right of Alert Barred for Employees Who Have Left the Company (French Supreme Court, 18 March 2026, No. 24-15.990)

By DAIRIA Avocats | Employment Law | Case Commentary

In a ruling dated 18 March 2026 (No. 24-15.990), the Social Chamber of the French Supreme Court (Cour de cassation) clarified an essential admissibility condition for the right of alert (“droit d’alerte”) exercised by a member of the Social and Economic Committee (Comité social et économique, or “CSE”) in cases of infringement of individuals’ rights: the employee concerned must be part of the company’s workforce on the day the court is seised. This decision clarifies the scope of this protective mechanism and its temporal limits.

The Facts of the Case

A member of a company’s CSE had exercised its right of alert under Article L. 2312-59 of the French Labour Code. This provision allows any CSE member who observes — in particular through an employee — that there exists within the company an infringement of individuals’ rights, of their physical and mental health, or of individual freedoms that is neither justified by the nature of the task to be performed nor proportionate to the aim pursued, to refer the matter immediately to the employer.

In this case, the elected CSE member had exercised this alert by relying on an infringement of the rights of a specifically identified employee. The member then referred the matter to the employer, who did not carry out an investigation or remedy the situation. This led the elected member to bring the matter before the ruling panel of the Labour Court (conseil de prud’hommes) sitting under the fast-track procedure (“en la forme des référés”), in accordance with the procedure set out in the provision.

However, between the moment the alert was exercised and the moment the court was seised, the employee concerned had left the company. His employment contract had been terminated — whatever the cause — and he was no longer part of the workforce on the day the court was seised.

The Court of Appeal nonetheless held that the right of alert remained admissible, considering that the infringement of rights observed at the time the alert was exercised was sufficient to found the court’s jurisdiction, regardless of the employee’s subsequent presence within the company.

The question submitted to the Supreme Court was the following: may a CSE member who exercises the right of alert provided for by Article L. 2312-59 of the French Labour Code rely on an infringement of the rights of an employee who is no longer part of the company’s workforce on the day the court is seised?

This question raised a fundamental issue as to the purpose of the right of alert. Is this mechanism intended to sanction a past infringement, or to put an end to a current infringement? The answer determined the admissibility of the action brought by the elected CSE member.

The Supreme Court’s Solution

The Supreme Court quashed the Court of Appeal’s decision and laid down a clear rule. It held that a CSE member who exercises the right of alert provided for by Article L. 2312-59 of the French Labour Code may not rely on an infringement of the rights of an employee who is no longer part of the company’s workforce on the day the court is seised.

The Court based its decision on the very purpose of the right of alert. This mechanism is intended to put an end to an ongoing infringement of an employee’s rights. It is a preventive and corrective device, not a mechanism for sanction or reparation after the fact. Now, once the employee has left the company, the infringement of his rights within the context of the employment relationship has, by definition, ceased.

The Court noted that the judge seised under the right of alert rules under the fast-track procedure and may order “any measures appropriate to put an end to that infringement.” This power of injunction logically presupposes that the infringement is ongoing at the time the judge rules, which implies that the employee is still part of the workforce.

This interpretation is consistent with the nature of the right of alert, which is a rapid-intervention mechanism intended to protect employees still in post, and not a substitute for the ordinary legal remedies (individual claim before the Labour Court, trade union action, etc.) that remain available to sanction or obtain reparation for past infringements.

The Right of Alert in Cases of Infringement of Individuals’ Rights: The Statutory Framework

Article L. 2312-59 of the French Labour Code organises the CSE’s right of alert in cases of infringement of individuals’ rights. This mechanism, derived from the former procedure under Article L. 2313-2 relating to staff representatives (“délégués du personnel”), is one of the CSE’s most important prerogatives in terms of protecting employees’ individual rights.

The procedure unfolds in several stages. When a CSE member observes an infringement of individuals’ rights, the member refers the matter immediately to the employer. The employer must then carry out an investigation without delay together with the CSE member and take the necessary steps to remedy the situation. In the event of the employer’s failure to act, or of disagreement over the reality of the infringement, the employee or the CSE member may bring the matter before the ruling panel of the Labour Court sitting under the fast-track procedure.

The judge may then order any measures appropriate to put an end to the infringement and may attach a penalty payment (“astreinte”) to the decision. This power of injunction is considerable and gives the right of alert significant practical effectiveness.

Infringements Covered by the Right of Alert

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

Such infringements must, however, be neither justified by the nature of the task to be performed nor proportionate to the aim pursued — a reference to the classic proportionality test of Article L. 1121-1 of the French Labour Code.

Prior Case Law on the Conditions of the Right of Alert

The Supreme Court had already had occasion to clarify certain conditions for exercising the right of alert. In particular, it had held that the CSE member must identify with sufficient precision the alleged infringement and the employee concerned (Cass. soc., 10 December 1997, No. 95-42.661). It had also recalled that the joint investigation phase constituted a mandatory prerequisite to seising the court (Cass. soc., 15 May 2001, No. 99-10.037).

The ruling of 18 March 2026 adds a temporal condition to these requirements: the employee must still be part of the workforce on the day the court is seised. This condition, which had not previously been expressly stated by the Court, logically follows from the purpose of the mechanism.

Interaction with Other Remedies

It is important to stress that the ruling does not leave the employee who has left the company without remedy. The right of alert is merely one of the available mechanisms. The former employee retains the possibility of bringing an individual claim before the Labour Court to have the infringement of his rights recognised and to obtain reparation. Trade unions may also act by substitution in certain cases. Only the CSE’s specific right of alert mechanism is closed off once the employee has left the company.

Practical Significance for Employers

Verifying the Employee’s Presence in the Workforce

The ruling of 18 March 2026 provides employers with a procedural defence where a court is seised under the right of alert. Before responding on the merits, the employer should systematically verify whether the employee on whose behalf the alert is exercised is still part of the workforce at the time the court is seised.

Points requiring attention:

  • Verify the effective date of termination of the relevant employee’s employment contract;
  • Compare that date with the date on which the court was seised;
  • If the employee left the company before the court was seised, raise the inadmissibility of the claim on the basis of the ruling of 18 March 2026;
  • Caution: an unperformed notice period does not necessarily amount to departure from the workforce, since the employment contract runs until the end of the notice period.

Do Not Neglect the Investigation Phase

While this decision offers a useful procedural argument, it should not lead employers to neglect their obligations during the preliminary investigation phase. When a CSE member exercises the right of alert, the employer must carry out a joint investigation without delay, even if the employee is about to leave the company.

Recommendations:

  • Take each alert seriously and initiate the investigation without delay;
  • Document the entire procedure: date of the alert, identity of the CSE member, nature of the alleged infringement, conduct of the investigation, measures taken;
  • Do not attempt to stall in the hope that the employee’s departure will allow you to escape the investigation;
  • Retain evidence relating to the effective date of the employee’s departure.

Anticipating Departures During an Ongoing Alert

In practice, situations in which a right of alert is exercised while the employee is in the process of leaving (notice period running, mutually agreed termination — “rupture conventionnelle” — pending approval, fixed-term contract reaching its term) may become more frequent. Employers must be vigilant in these scenarios.

Best practices:

  • Maintain precise tracking of ongoing rights of alert and of the contractual situation of the employees concerned;
  • Inform the company’s legal counsel as soon as a right of alert is exercised for an employee whose departure is imminent;
  • Do not accelerate a termination procedure in an attempt to render the alert inadmissible, as this could be characterised as fraudulent manoeuvring;
  • Remind CSE members that the right of alert has a forward-looking purpose and cannot target situations concerning former employees.

Impact on Relations with the CSE

This decision can serve as a point of constructive dialogue with staff representatives. It recalls that the right of alert is a tool for protecting employees still in post, and not an instrument for retrospective litigation. Employers may encourage CSE members to exercise their right of alert early — as soon as the infringement is observed — rather than waiting until an advanced stage at which the employee might have left the company.

FAQ – Frequently Asked Questions

Can the right of alert be exercised for an employee serving a notice period?

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

Does the former employee lose all recourse?

No. The ruling closes off only the route of the CSE’s right of alert. The former employee retains the possibility of bringing an individual claim before the Labour Court to have the infringement of his rights recognised and to obtain reparation. The ordinary limitation periods apply.

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

Article L. 2312-59 of the French Labour Code addresses infringements of individuals’ rights on an individual basis. If the infringement concerns several employees and some are still part of the workforce, the right of alert remains admissible for the latter. Only employees who have left the company must be excluded from the claim as of the day the court is seised.

Can the employer be held liable for failing to investigate, even if the employee has since left the company?

The ruling concerns the admissibility of seising the court under the right of alert, not the employer’s liability under its safety obligation. A failure to investigate could be held against the employer in the context of another action (an individual claim by the employee, a trade union action), independently of the question of the right of alert.

At what point is the workforce-membership condition assessed?

The Supreme Court holds that it is the date on which the court is seised — that is, the date of filing the petition or serving the summons before the ruling panel of the Labour Court. It is neither the date of the initial alert nor the date of the hearing, but rather the date the court is seised.

This article is a legal commentary provided for informational purposes. It does not constitute personalised legal advice. For any specific situation, please contact DAIRIA Avocats.

← All insights