French Labour Law

CSE Right of Alert: Not Available for Employees Who Have Left the Company (French Supreme Court, 18 March 2026, No. 24-15.990)

DAIRIA Law · 2026-09-08 · 11 min

CSE Right of Alert: Not Available 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 decision dated 18 March 2026 (No. 24-15.990), the French Supreme Court (Cour de cassation), Employment Division, has clarified an essential admissibility condition governing 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 individual rights: the employee concerned must be part of the company’s workforce on the date the court is seised. This ruling 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 his 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 their individual freedoms within the company, which is neither justified by the nature of the task to be performed nor proportionate to the aim pursued, to immediately refer the matter 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 conducted an investigation or had not remedied the situation. This led the CSE member to bring the matter before the adjudicating 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 provided for by the statute.

However, between the time the alert was exercised and the time 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 date the court was seised.

The Court of Appeal nonetheless held that the right of alert remained admissible, taking the view that the infringement of rights observed at the time the alert was exercised was sufficient to establish the court’s jurisdiction, regardless of whether the employee subsequently remained with the company.

The question submitted to the Supreme Court was as follows: may a CSE member who exercises the right of alert provided for under 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 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 bring an end to an ongoing infringement? The answer to this question determined the admissibility of the action brought by the CSE member.

The Supreme Court’s Ruling

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 under 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 date the court is seised.

The Court based its decision on the very purpose of the right of alert. This mechanism is intended to bring an end to an ongoing infringement of an employee’s rights. It is a preventive and corrective device, and not a mechanism for sanctioning or providing compensation after the fact. 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 noted that the court seised in the context of the right of alert rules under the fast-track procedure and may order “any measures apt to bring 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 current employees, and not a substitute for the ordinary legal remedies (an individual Labour Court action, union action, etc.) which remain available to sanction or provide compensation for past infringements.

Article L. 2312-59 of the French Labour Code governs the CSE’s right of alert in cases of infringement of individuals’ rights. This device, 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 regarding the protection of employees’ individual rights.

The procedure unfolds in several stages. When a CSE member observes an infringement of individuals’ rights, he immediately refers the matter 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 adjudicating panel of the Labour Court ruling under the fast-track procedure.

The court may then order any measures apt to bring an end to the infringement and may accompany its 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, freedom regarding dress, respect for private life, religious freedom, etc.).

However, these infringements must be neither justified by the nature of the task to be performed nor proportionate to the aim pursued, which refers back to the classic proportionality test under Article L. 1121-1 of the French Labour Code.

Previous 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. It had notably held that the CSE member had to identify the alleged infringement and the employee concerned with sufficient precision (Cass. soc., 10 December 1997, No. 95-42.661). It had also noted that the joint investigation phase constituted a mandatory precondition to seising the court.

The decision 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 seised. This condition, which had not yet been expressly laid down by the Court, follows logically from the purpose of the device.

Interaction with Other Remedies

It is important to stress that the ruling does not leave the employee who has left the company without a remedy. The right of alert is only one of the available mechanisms. The former employee retains the ability to refer the matter to the Labour Court in the context of an individual action to have the infringement of his rights recognised and to obtain compensation. Trade unions may also act by way of 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 decision of 18 March 2026 provides the employer with a procedural line of defence where a court is seised 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 seised.

Points requiring attention:

  • Verify the date on which the employee’s employment contract was effectively terminated;
  • Compare that date with the date 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 18 March 2026 decision;
  • 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

While this decision provides a useful procedural argument, it should not lead the employer to neglect its obligations during the preliminary investigation phase. Where a CSE member exercises his right of alert, the employer must conduct a joint investigation without delay, 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 in the hope that the employee will leave in order to avoid the investigation;
  • Retain the evidence relating to the date of the employee’s effective 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 (an ongoing notice period, a mutually agreed termination — “rupture conventionnelle” — pending administrative approval, a fixed-term contract reaching its end) may multiply. The employer must be vigilant in these scenarios.

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 characterised as a fraudulent manoeuvre;
  • 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 may serve as a point of constructive dialogue with staff representatives. It reminds all parties that the right of alert is a tool to protect current employees, and not an instrument of retrospective litigation. The employer may encourage CSE members to exercise their right of alert at an early stage, as soon as the infringement is observed, 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 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 remedies?

No. The ruling closes off only the avenue of the CSE’s right of alert. The former employee retains the ability to bring an individual action before the Labour Court to have the infringement of his rights recognised and 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 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 of the date 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 in the context of the right of alert, and not the employer’s liability under its duty of safety (obligation de sécurité). The failure to investigate could be held against the employer in the context of another action (an individual action by the employee, union action), independently of the right-of-alert issue.

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

The Supreme Court adopts the date on which the court is seised, i.e. the date the petition or summons is filed before the adjudicating 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.

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