Internal investigation plan: the role of the CSE representative, from alert to joint investigation
A CSE representative is not a professional investigator, and the law does not expect them to be. When an employee confides facts of harassment, discrimination or a health risk to them, the internal investigation is the employer's responsibility: the employer decides whether to open one and leads it. The representative's role lies elsewhere, and it is decisive: triggering the investigation, taking part in it, and making sure it is conducted seriously.
Knowing when to step in, and with what method, is the whole point of this article.
What the law provides for the CSE representative (and what it does not)
The employer has a safety obligation towards employees (Article L4121-1 of the French Labour Code). Verifying reported facts, most often through an internal investigation, is therefore the employer's duty. The employer is not required to involve the works council on their own initiative: case law accepts that an investigation conducted by the human resources department alone can be produced in court.
The representative, however, has three levers provided by the Labour Code:
- The alert procedure for violations of individual rights and freedoms (Article L2312-59): when they observe, directly or through an employee, a violation of people's rights, of their physical or mental health or of individual freedoms (moral or sexual harassment, discrimination...), the representative immediately notifies the employer. The employer must then promptly open an investigation with the representative and take the necessary measures.
- The alert procedure for grave and imminent danger (Articles L4131-2 and L4132-2): the employer immediately investigates together with the representative who reported the danger.
- Investigations following a workplace accident or occupational disease (Article L2312-13, companies with at least 50 employees): they are conducted by a delegation including at least the employer and an employee representative.
In all these cases, the investigation is joint. The representative does not investigate alone, does not summon employees on their own authority and has no disciplinary power. The sexual harassment referent designated by the works council has no independent investigative power either: they act through the alert procedure, like any representative.
Why the representative still needs a plan
Taking part in a joint investigation without preparation means letting the employer alone set the scope, the list of people interviewed and the schedule. A plan, even a simple one, allows the representative to:
- state their requests clearly as soon as the alert is raised;
- propose a method and have it recorded in writing;
- check, throughout the investigation, that what was planned is actually done;
- keep a record of their role, useful if the case ends up before the labour court.
A five-step method
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Notify the employer in writing. The alert must be immediate. A dated email or letter is enough: describe the reported facts and ask to be part of the investigation. This written record marks the starting point and proves the employer was informed.
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Frame the subject in one sentence. With the employer, formulate the object of the investigation: "The report concerns [specific fact], allegedly committed by [person] on [date], and may fall under [moral harassment, sexual harassment, discrimination...]." If the object does not fit in one sentence, the report is not yet understood, and the investigation risks going in all directions.
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Propose the list and order of people to be interviewed. The employer organizes the interviews, but the representative can and should make proposals. A common order: the employee who made the report, then the witnesses (direct colleagues, managers), then the person concerned. Hearing the latter last prevents them from adjusting their version to what others will say. This is not a legal requirement, but a good practice worth recording.
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Agree on a schedule. The law requires the investigation to be conducted "without delay" ("immediately" for grave and imminent danger), without setting a duration. It is up to the representative to ask for a written, realistic schedule, for example a few weeks for a harassment case, and to follow up if nothing moves. On the employer's side, one constraint exists: if a disciplinary sanction is contemplated, the employer has two months from becoming aware of the facts to initiate disciplinary proceedings.
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Take part in the interviews with a thread. Prepare three to five open questions per person. Write answers down during the interview, not after. Distinguish facts (what was seen or heard, and when) from opinions and interpretations. At the end, check that the record of each interview accurately reflects what was said.
A tracking template to reuse
Here is a simple template the representative can use to follow the joint investigation and check that it moves forward:
| Step | Who | Proposed deadline | What we need to find out | Status |
|---|---|---|---|---|
| Written alert to the employer | Representative | Day 0 | Notify the employer and ask to be involved | To do |
| Framing of the object and method | Employer + representative | D+2 | Scope, people to interview, schedule | To plan |
| Interview of the reporting employee | Employer + representative | To be agreed | The facts, the context, the people involved | To plan |
| Interviews of witnesses | Employer + representative | To be agreed | What they observed or heard | To plan |
| Interview of the person concerned | Employer + representative | To be agreed | Their version of the facts, their context | To plan |
| Analysis and conclusions | Employer + representative | To be agreed | Points of convergence and divergence, measures to take | To do |
| Decision and measures | Employer | To be agreed | Measures to end the violation | To do |
This template does not replace a professional investigation method. It works as a safeguard: at each step, the representative knows what has been done and what remains to be done.
One point of vigilance: the representative is bound by a discretion obligation regarding information presented as confidential (Article L2315-3). They may inform the employee of the outcome of their alert, but they do not pass on the content of the interviews.
When the joint investigation is not enough
Three situations call for a different response:
- The employer does nothing or disputes the facts. The employee can refer the matter to the labour court, which rules under an expedited procedure and can order any measure to end the violation. The representative can also do so, if the employee, informed in writing, does not object (Article L2312-59).
- Disagreement over a grave and imminent danger. The works council is convened urgently, within 24 hours, and the labour inspectorate is informed. Failing an agreement, the employer refers the matter to the labour inspector (Article L4132-3).
- Complex case or facts that may fall under criminal law. Many people to interview, digital evidence to analyze, several sites, suspicions of violence or corruption: the representative can ask the employer to entrust the investigation to a specialized team (compliance, internal audit) or an external provider, while remaining involved under their alert rights. They can also, at any time, contact the labour inspectorate.
To go further, the complete guide "Conducting an internal investigation" details the professional method. The articles on investigative interviews for CSE representatives, on the role of the sexual harassment referent and on grave and imminent danger each cover one of these cases.
See how Evidencia structures the follow-up of an internal investigation from end to end → Whistleblowing system for works councils and employee representatives
