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All workers have the right to alert their employer if they observe a serious risk of harm to the environment or public health. What is the procedure? What are the employer's obligations? We explain it all in detail in this article!
What is the right to alert on public health and environmental issues?
Introduced by Law no. 2013-316 of April 16, 2013 and Decree no. 2014-324 of March 11, 2014, the right to alert in matters of public health and the environment enables any worker who observes a serious risk of harm to the environment or public health to report it to his or her employer with the aim of preventing the damage from occurring.
More specifically, regulations stipulate that workers must immediately alert their employer if they believe, in good faith, that the products or manufacturing processes used or implemented by the company pose a serious risk to public health or the environment (articles L4133-1 and L4133-2 C. trav.).
ℹ Please note : Whistleblowing in the fields of public health and the environment must be distinguished from the general whistleblowing system. This is because Its scope is strictly limited to public health and environmental issues.
It must also be distinguished from the right to alert in the event of serious and imminent danger to health and safety at work (article L2312-60 C. trav.), which is accompanied by the employee's right to withdraw.
Who can exercise the right to alert on public health and environmental issues?
The right to alert on public health and environmental issues is open to all employees, whether or not they are members of the social and economic committee (CSE). It applies to all companies, regardless of headcount.
It is important to specify that the notion of "worker" is broader than that of employee. It includes trainees, temporary workers and, more generally, any person placed under the employer's authority in any capacity whatsoever.
Whistleblower protection
Workers who sound the alarm on health and environmental issues benefit from comprehensive protection(article L4133-3 C. trav.):
- they may not be punished, dismissed or subjected to any discriminatory measure for having reported or disclosed information in the context of their right to alert(article L1121-2 of the French Labor Code);
- he cannot be held liable (civilly and criminally) for damages caused as a result of his reporting as long as he had reasonable grounds to believe that such reporting was necessary(article 10-1 of law n°2016-1691) ;
- In the event of termination of the employment contract following the reporting of an alert, he may refer the matter to the Conseil des prud'hommes(Articles 12 to 13-1 of Law n°2016-1691).
What are the conditions for exercising the right to alert in public health and environmental matters?
Exercise of the right to alert is subject to three cumulative conditions:
- the risk must have an impact on public health and/or the environment ;
- the risk must be serious (but not necessarily "imminent" as in the case of the right to alert in the event of serious and imminent danger);
- the serious risk must be related to the products or manufacturing processes used or implemented by the company.
Examples of situations that may give rise to the right to alert :
Public health: infections, food contamination, etc.
Environmental: air, soil or water pollution, excessive noise in relation to regulatory thresholds, non-compliant waste disposal, etc.
In practical terms, what are the employer's obligations?
Alert logging
Articles D4133-1 and D4133-2 of the French Labor Code set out the procedure to be followed in the event of a warning issued by an employee or a member of the Works Council.
In both cases, the alert must be recorded in a special register (the register of health and environmental alerts), the pages of which are numbered . It must be dated and signed.
🔎 Focus : The purpose of these formalities is, on the one hand, to start the period during which the alert must be handled by the employer (and the possible referral to the prefect), and on the other hand, to make the whistleblower more responsible by avoiding anonymous or malicious reports.
In addition, the recorded alert must mention :
- products or manufacturing processes used or implemented by the establishment which the worker considers to present a serious risk to public health or the environment;
- any potential consequences for public health or the environment ;
- any other useful information.
This register must be made available to the CSE(article D4133-3 C. trav.).
⚠️ Warning : Failure to make the register available to the CSE exposes the employer to a fine of up to 10,000 euros. This fine is increased to 30,000 euros and one year's imprisonment in the event of a repeat offence. The fine is applied as many times as the number of employees concerned (article L4741-1 C. trav.).
It should be noted that in companies with several establishments but only one CSE, it is sufficient to set up an alert register at head office level. The employer is not obliged to set up a register in each establishment(Cass. soc., September 28, 2022, n°21-16993). On the contrary, it seems that when each establishment of the same company is considered as an independent legal entity with a CSE, then the company must set up the register in each of its separate establishments.
Alert processing
When a warning comes from an employee, the employer must inform the employee of the action it intends to take on the warning(article L4133-1 C. trav.).
When the alert comes from a member of the CSE, the employer must examine the situation jointly with the member and inform him/her of the action it intends to take(article L4133-2 C. trav.).
In all cases, the employer must take the necessary measures to put an end to the situation that gave rise to the exercise of the right to alert.
ℹ Please note : The CSE must be involved throughout the alert procedure. Thus, the employer must inform it of alerts transmitted to it and of the action taken (article L4133-4 C. trav.). It must also inform the CSE of alerts that have been referred to the prefect.
Worker information
Prior to any alert procedure, the employer must inform employees of :
the risks that the products or manufacturing processes used or implemented by the establishment may pose to public health or the environment;
- the measures taken to remedy the situation.
This obligation is in addition to the general obligation to provide information on occupational health and safety risks set out in Article L4141-1 of the French Labor Code.
CSE meetings in companies with at least 50 employees
Lastly, the French Labor Code stipulates that a meeting of the CSE is mandatory whenever a serious event affecting public health or the environment occurs as a result of the plant's activities.
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