French Labour Law

CSE Right of Alert Cannot Be Used for a Departed Employee (French Supreme Court, 18 March 2026, No. 24-15.990)

DAIRIA Law · 2026-08-18 · 11 min

CSE Right of Alert: Inadmissible for an Employee Who Has Left the Company (Cass. soc., 18 March 2026, No. 24-15.990)

By DAIRIA Avocats | Employment Law | Case Commentary

In a decision dated 18 March 2026 (No. 24-15.990), the Social Chamber of the French Supreme Court (Cour de cassation) clarifies an essential condition of admissibility 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 the event of an infringement of individuals’ rights: the employee concerned must be part of the company’s workforce on the day the judge is seized. This decision clarifies the scope of this protective mechanism and its temporal limits.

The Facts of the Case

A member of a company’s Social and Economic Committee (CSE) had exercised the right of alert pursuant to Article L. 2312-59 of the French Labour Code. This provision allows any CSE member who finds — in particular through an employee — that there is an infringement of individuals’ rights, of their physical and mental health, or of individual freedoms within the company 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 invoking an infringement of the rights of a specifically identified employee. He then referred the matter to the employer, who had failed to conduct an investigation or to remedy the situation, which led the elected member to refer the matter to the ruling division of the conseil de prud’hommes (labour court) sitting under the fast-track procedure (en la forme des référés), in accordance with the procedure provided for by the text.

However, between the moment the alert was exercised and the moment the judge was seized, 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 seized.

The Court of Appeal nonetheless held that the right of alert remained admissible, considering that the infringement of rights found at the time the alert was exercised was sufficient to establish the judge’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 in Article L. 2312-59 of the French Labour Code invoke an infringement of the rights of an employee who is no longer part of the company’s workforce on the day the judge is seized?

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 bring an ongoing infringement to an end? The answer to this question determined the admissibility of the action brought by the elected CSE member.

The Supreme Court’s Ruling

The Supreme Court overturned 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 in Article L. 2312-59 of the French Labour Code may not invoke an infringement of the rights of an employee who is no longer part of the company’s workforce on the day the judge is seized.

The Court based its decision on the very purpose of the right of alert. This mechanism is intended to bring an ongoing infringement of an employee’s rights to an end. It is a preventive and corrective device, not a mechanism for sanction or a posteriori compensation. Where the employee has left the company, the infringement of his rights within the framework of the employment relationship has, by definition, ceased.

The Court recalled that the judge seized within the framework of the right of alert rules under the fast-track procedure and may order “any measures appropriate to bring this infringement to an end.” This power of injunction logically presupposes that the infringement is ongoing at the moment 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 labour court action, union action, etc.) that remain available to sanction or provide compensation for past infringements.

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

The procedure takes place in several stages. When a CSE member finds an infringement of individuals’ rights, he refers the matter immediately to the employer. The employer must, without delay, conduct an investigation together with the CSE member and take the necessary measures to remedy the situation. In the event of the employer’s failure to act, or of a disagreement as to the reality of the infringement, the employee or the CSE member may refer the matter to the ruling division of the labour court sitting under the fast-track procedure.

The judge may then order any measures appropriate to bring the infringement to an end and may accompany the decision with a penalty payment (astreinte). 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, dress freedom, respect for privacy, religious freedom, etc.).

These infringements must, however, be neither justified by the nature of the task to be performed nor proportionate to the aim pursued, which refers 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 the opportunity to clarify certain conditions for exercising the right of alert. It had notably held that the CSE member must sufficiently precisely identify 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 constitutes a mandatory prerequisite to seizing the judge (Cass. soc., 15 May 2001, No. 99-10.037).

The decision of 18 March 2026 adds a temporal condition to these requirements: the employee must still be part of the workforce on the day the judge is seized. This condition, which had not yet been expressly established by the Court, follows logically from the purpose of the mechanism.

Interaction with Other Remedies

It is important to emphasise that the decision does not leave the employee who has left the company without recourse. The right of alert is only one of the available mechanisms. The former employee retains the possibility of referring the matter to the labour court through an individual action to have the infringement of his rights recognised and to obtain compensation. Unions may also act by substitution in certain cases. Only the specific mechanism of the CSE’s right of alert is closed once the employee has left the company.

Practical Implications for Employers

Verify the Employee’s Presence in the Workforce

The decision of 18 March 2026 provides the employer with a procedural defence in the event a judge is seized within the framework of a right of alert. Before responding on the merits, the employer should systematically verify whether the employee in whose name the alert is exercised is still part of the workforce at the moment the judge is seized.

Points requiring attention:

  • Verify the effective termination date of the employment contract of the employee concerned;
  • Compare this date with the date the judge was seized;
  • If the employee left the company before the judge was seized, raise the inadmissibility of the claim on the basis of the decision of 18 March 2026;
  • Caution: a notice period that is not worked does not necessarily amount to departure from the workforce, as 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 must not lead the employer to neglect its obligations during the preliminary investigation phase. When a CSE member exercises the right of alert, the employer must conduct a joint investigation without delay, even if the employee is about to leave the company.

Recommendations:

  • Take each alert seriously and launch 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 of the employee’s departure in order to avoid the investigation;
  • Retain the evidence relating to the employee’s effective departure date.

Anticipate 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 underway, rupture conventionnelle — a mutually agreed termination — pending approval, fixed-term contract reaching its end) may increase. The employer must be vigilant in these scenarios.

Best practices:

  • Maintain precise monitoring of ongoing rights of alert and 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 prospective purpose and cannot target situations concerning former employees.

Impact on Relations with the CSE

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

FAQ – Frequently Asked Questions

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

Yes, as long as the employment contract has not been terminated. An employee serving notice 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 decision closes only the avenue of the CSE’s right of alert. The former employee retains the possibility of individually referring the matter to the labour court to have the infringement of his rights recognised and to obtain compensation. 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 covers 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 on the day the judge is seized.

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

The decision concerns the admissibility of seizing the judge within the framework of the right of alert, not the employer’s liability under its duty of safety. A failure to investigate could be held against the employer within the framework of another action (individual employee action, union action), independently of the question of the right of alert.

At what point is the condition of presence in the workforce assessed?

The Supreme Court adopts the date the judge is seized, that is, the date of filing the application or the summons before the ruling division 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 seized.

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

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