French Labour Law

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

DAIRIA Law · Published · 11 min

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

By DAIRIA Avocats | Employment Law | Case Commentary

In a decision dated March 18, 2026 (No. 24-15.990), the Social Chamber of the French Cour de cassation (Supreme Court) has clarified an essential admissibility condition for the right of alert (droit d’alerte) exercised by a member of the CSE (Social and Economic Committee) in the event of an infringement of individual rights: the employee concerned must still be part of the company’s workforce on the date 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 (comité social et économique, or CSE) had exercised his right of alert under 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 individual rights, of physical or 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 objective sought, to immediately bring the matter to the employer’s attention.

In this case, the CSE representative had exercised this alert by invoking an infringement of the rights of a specifically identified employee. He had then referred the matter to the employer, who had not carried out an investigation or had not remedied the situation, which led the representative to bring the matter before the adjudicating panel of the labour tribunal (conseil de prud’hommes) ruling under the accelerated procedure, in accordance with the procedure set out in the provision.

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 date 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 in the company.

The question submitted to the Cour de cassation was as follows: can a CSE member exercising 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 date 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 put an end to a current one? The answer to this question determined the admissibility of the action brought by the CSE representative.

The Cour de cassation’s Ruling

The Cour de cassation quashed the Court of Appeal’s decision and laid down a clear rule. It held that a CSE member exercising the right of alert provided for in Article L. 2312-59 of the French Labour Code cannot invoke an infringement of the rights of an employee who is no longer part of the company’s workforce on the date the judge is seized.

The Supreme 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 a posteriori compensation. When the employee has left the company, the infringement of his rights within the employment relationship has, by definition, ceased.

The Court recalled that the judge seized in the context of the right of alert rules under the accelerated procedure and may order “all appropriate measures to put an end to the 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 in post, and not a substitute for the standard legal remedies (individual labour tribunal action, trade union action, etc.) which remain available to sanction or obtain compensation for past infringements.

Article L. 2312-59 of the French Labour Code organizes the CSE’s right of alert in the event of an infringement of individual rights. This mechanism, derived from the former procedure under Article L. 2313-2 relating to staff delegates, is one of the CSE’s most important prerogatives in terms of protecting the individual rights of employees.

The procedure takes place in several stages. When a CSE member finds an infringement of individual rights, he brings the matter to the employer’s attention without delay. The employer must, without delay, carry out 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 disagreement as to the reality of the infringement, the employee or the CSE member may refer the matter to the adjudicating panel of the labour tribunal ruling under the accelerated procedure.

The judge may then order all appropriate measures to put an end to the infringement and may accompany his 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 covers infringements of individual rights (discrimination, moral or sexual harassment, infringement of dignity), of physical and mental health (dangerous working conditions, psychosocial risks) and of individual freedoms (freedom of expression, freedom of dress, respect for privacy, religious freedom, etc.).

However, these infringements must not be justified by the nature of the task to be performed nor proportionate to the objective sought, 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 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 identify with sufficient precision the alleged infringement and the employee concerned (Cass. soc., December 10, 1997, No. 95-42.661). It had also recalled that the joint investigation phase constituted a mandatory precondition to seizing the judge.

The decision of March 18, 2026 adds a temporal condition to these requirements: the employee must still be part of the workforce on the date the judge 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 emphasize 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 bringing an individual action before the labour tribunal to have the infringement of his rights recognized and to obtain compensation. Trade unions may also bring substitution actions 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 Implications for the Employer

Verifying the Employee’s Presence in the Workforce

The decision of March 18, 2026 provides the employer with a procedural line of defense where a judge is seized in the context of a right of alert. Before responding on the merits, the employer must systematically check whether the employee in whose name the alert is exercised is still part of the workforce at the time the judge is seized.

Points to watch:

  • 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 based on the decision of March 18, 2026;
  • Caution: an unperformed notice period does not necessarily mean 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 provides a useful procedural argument, it should not lead the employer to neglect its obligations during the prior 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 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 underway, rupture conventionnelle — negotiated termination — pending approval, fixed-term contract nearing its end) may multiply. The employer must be vigilant in these situations.

Best practices:

  • Keep precise track 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 characterized as fraudulent conduct;
  • Remind CSE representatives 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 employee representatives. It recalls that the right of alert is a tool for protecting employees in post, and not an instrument for retrospective litigation. The employer may encourage CSE representatives to exercise their right of alert early, as soon as the infringement is found, rather than waiting until an advanced stage where the employee may have already left the company.

FAQ – Frequently Asked Questions

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

Yes, as long as the employment contract has not been terminated. An employee on 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 only closes off the avenue of the CSE’s right of alert. The former employee retains the possibility of bringing an individual action before the labour tribunal to have the infringement of his rights recognized 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 individual 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 those employees. Only employees who have left the company must be excluded from the claim as of the date the judge is seized.

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

The decision concerns the admissibility of seizing the judge in the context of the right of alert, and not the employer’s liability under its safety obligation. The failure to investigate could be held against the employer in the context of another action (individual action by the employee, trade union action), independently of the right-of-alert issue.

At what point is the workforce-presence condition assessed?

The Cour de cassation adopts the date the judge is seized — that is, the date the petition or summons is filed before the adjudicating panel of the labour tribunal. 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 informational purposes. It does not constitute personalized legal advice. For any specific situation, please contact DAIRIA Avocats.

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