The CSE's right to alert: When must the employer pass on information about employees working for third-party companies?

The CSE's right to alert is an essential mechanism enabling employee representatives to act when they consider that a situation constitutes a serious and imminent danger to the health, safety or working conditions of employees. But this right is not limited to warnings about physical dangers. It also concerns the transmission of important information, in particular that relating to employees working for third-party companies.

In this article, we address a crucial question for the CSE: can it ask the employer to transmit a list of the names of employees working on customer sites or outside the company? This issue concerns the balance between the prerogatives of employee representatives and the employer's right to confidentiality.

The CSE's right to information: a delicate balance

It is a given that the CSE has a right to information in the context of collective labor relations to carry out its duties as employee representative, including individual and collective complaints. This right includes, in the exercise of their functions, the possibility for staff representatives to move freely within the company, and to obtain information on the location of worksites, as well as on the numbers and working hours of employees working outside the company.

However, the situation becomes more complex when workers are sent to third-party companies, on worksites or in dispersed units. Employers may sometimes refuse to pass on certain information, citing confidentiality or other legal reasons. It is in this context that the CSE's right to alert takes on its full meaning, enabling the committee to request information essential to guaranteeing employees' safety and working conditions.

The specific case of refusal to transmit information: What does case law say?

Case law recently clarified this issue with a ruling by the French Supreme Court (Cour de cassation) on November 27, 2024. In this decision, the Court ruled that the employer's refusal to provide a list of workers by name for each customer site, along with their work locations, did not constitute a manifestly unlawful disturbance. Consequently, this did not justify a referral to the summary proceedings court.

The Court pointed out that the members of the CSE already had a list of the sites where employees working within their perimeter were working, as well as the number of employees present on these sites. What's more, staff representatives could contact employees via their professional e-mail address, enabling them to get in touch with them if necessary. This raises the question of how far the CSE's right to alert should extend in terms of access to information.

The impact of the CSE warning right on employers' practices

The Court of Cassation's decision illustrates the complexity of the situation: although the CSE has information rights, these are limited by the means made available by the employer. Theemployer must respect the CSE 's right to alert without being forced to transmit excessive or irrelevant information. The balance between protecting the rights of employee representatives and the employer's obligations to respect confidentiality.

Towards a strengthening of the CSE's right to alert?

The question is now in the hands of the Court of Appeal, which will have to determine whether this refusal of access to information constitutes an offence of obstructing the functions of employee representatives. This development in case law could have an impact on the way in which employers will have to collaborate with the CSE, particularly in sectors where employees regularly work for third-party companies or on client sites.

Conclusion: A question of balancing rights and obligations

The CSE's right of warning continues to evolve through court rulings, particularly with regard to the transmission of information. While the role of the CSE is to protect the interests of employees, particularly in matters of safety and working conditions, the employer has certain obligations in terms of confidentiality and information management.

Employers must therefore take care to respect the CSE's right to alert, while striking the right balance between transparency and data protection. For employee representatives, this right is fundamental to carrying out their duties effectively and ensuring a safe working environment for all employees.

Reference: Cass. soc. November 27, 2024, no. 22-22.145.