CSE Right of Alert in France: Not Available for a Departed Employee (Cass. soc., 18 March 2026, No. 24-15.990)

By DAIRIA Avocats | Employment Law | Case Commentary

In a ruling handed down on 18 March 2026 (No. 24-15.990), the French Supreme Court (Cour de cassation), Employment Division, clarifies 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 the event of an infringement of individuals’ rights: the employee concerned must be part of the company’s workforce on the date the court is seized. This decision clarifies the scope of this protective mechanism and its temporal limits.

The Facts of the Case

A member of the company’s Social and Economic Committee (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 is an infringement of individuals’ rights, of their physical and mental health, or of individual freedoms within the company, where such infringement is not justified by the nature of the task to be performed nor proportionate to the aim pursued, to immediately bring the matter to the employer’s attention.

Here, the elected CSE member had exercised this alert on the basis of an infringement of the rights of a specifically identified employee. The member had then referred the matter to the employer, who had not conducted an investigation or remedied the situation. This led the elected member to seize the judgment panel of the Labour Court (conseil de prud’hommes) ruling under the fast-track procedure (en la forme des référés), in accordance with the procedure laid down by the provision.

However, between the moment the alert was exercised and the moment the court was seized, the employee concerned had left the company. Their employment contract had been terminated, whatever the cause, and they were no longer part of the workforce on the date the court was seized.

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

The Legal Issue Raised

The question submitted to the Cour de cassation was as follows: may a CSE member who exercises the right of alert provided for in 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 date the court 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 put an end to a current infringement? The answer to this question determined the admissibility of the action brought by the elected CSE member.

The Cour de Cassation’s Ruling

The Cour de cassation quashes the Court of Appeal’s judgment and lays down a clear rule. It holds that a CSE member who exercises the right of alert provided for in 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 date the court is seized.

The Supreme Court bases 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, and not a mechanism for sanction or after-the-fact compensation. Where the employee has left the company, the infringement of their rights within the employment relationship has, by definition, ceased.

The Court recalls that the court seized in the context of the right of alert rules under the fast-track procedure and may order “any measures suitable to put an end to that infringement.” This power of injunction logically presupposes that the infringement is ongoing at the time the court 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 classic legal remedies (individual Labour Court action, trade union action, etc.) which remain available to sanction or compensate past infringements.

Legal Context and Case Law Developments

The Right of Alert in the Event of Infringement of Individuals’ Rights: The Legal Framework

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, derived from the former procedure of Article L. 2313-2 relating to staff representatives, is one of the CSE’s most important prerogatives in terms of protecting employees’ individual rights.

The procedure takes place in several stages. Where a CSE member observes an infringement of individuals’ rights, they immediately refer the matter to the employer. The employer must then, 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 seize the judgment panel of the Labour Court ruling under the fast-track procedure.

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

The 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.).

However, these infringements must not be justified by the nature of the task to be performed nor proportionate to the aim pursued, which refers back 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 Cour de cassation had already had occasion 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 was a mandatory prerequisite to seizing 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 date the court is seized. This condition, which had not yet been expressly laid down by the Court, follows logically 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 recourse. The right of alert is only one of the available mechanisms. The former employee retains the possibility of seizing the Labour Court in the context of an individual action to have the infringement of their rights recognised and to obtain compensation. Trade unions may also act by substitution in certain cases. Only the specific mechanism of the CSE’s right of alert 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 offers the employer a procedural means of defence where the court is seized in the context of a 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 seized.

Points requiring attention:

• Verify the effective termination date of the employment contract of the employee concerned;
• Compare this date with the date the court is seized;
• If the employee left the company before the court was seized, 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 leaving 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 should not lead the employer to neglect its obligations during the prior investigation phase. Where a CSE member exercises their right of alert, the employer must, without delay, conduct a joint investigation, even if the employee is about to leave the company.

Recommendations:

• Take every 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 seek to stall while awaiting the employee’s departure in order to escape the investigation;
• Retain evidence relating to the effective departure date of the employee.

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, rupture conventionnelle (mutually agreed termination) pending approval, fixed-term contract reaching its end) may multiply. The employer should be vigilant in these scenarios.

Best practices:

• Keep a precise record 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 elected 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 may provide 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 of retrospective litigation. The employer may encourage elected 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 may 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 individually seizing the Labour Court to have the infringement of their 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 targets 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 the employees who have left the company must be excluded from the claim on the date the court is seized.

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 seizing the court in the context of the right of alert, and not the employer’s liability under its duty of safety. A failure to investigate could be held against the employer in the context of another action (the employee’s individual action, trade union action), independently of the question of the right of alert.

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

The Cour de cassation adopts the date the court is seized, i.e. the date the application or summons is filed before the judgment 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 seized.

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