French Labour Law

CSE Right of Alert in France: Not Available for Employees Who Have Left the Company (Cass. soc., 18 March 2026, No. 24-15.990)

DAIRIA Law · 2026-09-22 · 11 min

CSE Right of Alert in France: Not Available for Employees Who Have Left the Company (Cass. soc., 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 French Supreme Court (Cour de cassation), Labour Division, clarified an essential admissibility condition for the right of alert (droit d’alerte — a statutory mechanism allowing employee representatives to report and stop infringements of individual rights) exercised by a member of the Social and Economic Committee (Comité social et économique, or CSE) in cases of infringement of personal rights: the employee concerned must be part of the company’s workforce on the day 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 a company’s Social and Economic Committee (CSE) had exercised the 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 personal rights, of employees’ 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 not carried out an investigation or had not remedied the situation, which led the elected member to seize the judgment panel of the Labour Court (conseil de prud’hommes) ruling under the expedited procedure (en la forme des référés), in accordance with the procedure provided for by the text.

However, between the time the alert was exercised and the time the court 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 nevertheless 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 establish the court’s jurisdiction, regardless of the employee’s subsequent presence in the company.

The question submitted to the Court of Cassation 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 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 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 Court of Cassation’s Ruling

The Court of Cassation 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 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 day the court is seized.

The Supreme 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 compensation after the fact. 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 court seized under the right of alert rules under the expedited procedure and may order “all measures appropriate to bring this infringement to an end.” 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 mechanism for rapid intervention intended to protect employees still in post, and not a substitute for the ordinary legal remedies (individual claim before the Labour Court, union action, etc.) that remain available to sanction or obtain compensation for past infringements.

Article L. 2312-59 of the French Labour Code organises the CSE’s right of alert in cases of infringement of personal rights. This mechanism, derived from the former procedure of Article L. 2313-2 relating to staff delegates, 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 observes an infringement of personal rights, he 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 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 expedited procedure.

The court may then order all measures appropriate to bring the infringement to an end and attach a penalty payment (astreinte) to its 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 personal rights (discrimination, moral or sexual harassment, infringement of dignity), of employees’ 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.).

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.

Previous Case Law on the Conditions for the Right of Alert

The Court of Cassation had already had the opportunity to clarify certain conditions for exercising the right of alert. It had notably held that the CSE member must identify the alleged infringement and the employee concerned with sufficient precision (Cass. soc., 10 December 1997, No. 95-42.661). It had also recalled that the joint investigation phase constituted a mandatory prerequisite to seizing the court.

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 seized. This condition, which had not yet been expressly laid down by the Court, follows logically from the purpose of the mechanism.

Interplay with Other Remedies

It is important to emphasise 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 through an individual claim to have the infringement of his 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 once the employee has left the company.

Practical Interest for the Employer

Verify the Employee’s Presence in the Workforce

The ruling of 18 March 2026 offers the employer a procedural line of defence when the court is seized under a right of alert. Before responding on the merits, the employer must 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 of vigilance:

  • Verify the effective termination date of the employment contract of the employee concerned;
  • Compare this date with the date the court was seized;
  • If the employee left the company before the court was seized, raise the inadmissibility of the claim relying on the ruling of 18 March 2026;
  • Note: an unworked notice period 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 for All That

While this decision offers a useful procedural argument, it should not lead the employer to neglect its obligations during the preliminary investigation phase. When a CSE member exercises his 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 seek to stall pending the employee’s departure in order to escape the investigation;
  • Retain evidence relating to the effective departure date of the employee.

Anticipate Situations of Departure While an Alert Is Pending

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 administrative approval, fixed-term contract reaching its term) may become more frequent. The employer must be vigilant in these scenarios.

Best practices:

  • Keep precise track of pending 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, which could be characterised as fraudulent manoeuvring;
  • Remind the 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 can serve as a point of constructive 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 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 only closes the avenue of the CSE’s right of alert. The former employee retains the possibility of individually seizing 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 personal rights on an individual basis. If the infringement concerns several employees and some of them 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 at the day 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 under the right of alert, not the employer’s liability under its safety obligation. The failure to investigate could be held against the employer within the framework of another action (an individual claim by the employee, a union action), independently of the question of the right of alert.

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

The Court of Cassation adopts the date on which the court is seized, i.e. the date of filing the application or the summons 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 on which the court is seized.

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

← All insights