# Precautionary suspension and interim measures Source: https://www.ouaknine-avocats.com/en/publications/mesures-conservatoires-enquete-interne Interim measures are intended to prevent the conduct from continuing and the evidence from disappearing. They are not sanctions. The line between the two turns on a few days and on the wording of a few lines. It determines what becomes of any later disciplinary proceedings. #### Precautionary suspension Article L. 1332-3 of the French Labour Code addresses the situation in which the conduct alleged against an employee has made an immediate precautionary suspension (mise à pied conservatoire) indispensable. It provides that no final sanction relating to those facts may then be imposed unless the procedure laid down in article L. 1332-2 has been complied with. Precautionary suspension is therefore not a sanction but a holding measure. It retains that character only so long as disciplinary proceedings are commenced at the same time or within a short period. An unexplained delay between notification of the suspension and the invitation to the preliminary meeting leads the courts to re-characterise it as a disciplinary suspension, six and then seven days having successively been held excessive where the employer put forward no reason justifying the wait. The delay may indeed be justified, in particular by the verifications the situation calls for, but the employer must establish this. Failing that, the consequence is automatic: the same facts cannot be sanctioned twice, so the employer is deprived of the ability to dismiss for them, and a dismissal imposed nonetheless lacks real and serious cause. Precautionary suspension does not necessarily entail suspension of pay, since the employer may choose to maintain it, the loss becoming final only if the sanction ultimately imposed is dismissal for gross misconduct (faute grave) or a disciplinary suspension covering the period. There remains the question of duration. A thorough investigation frequently takes several weeks, whereas precautionary suspension sits poorly with such a wait. The tension between these two requirements is the central problem at this stage. It is not resolved in the same way depending on the gravity of the alleged facts and the extent of the verifications required. #### Release from duties Article L. 1331-1 of the French Labour Code defines a sanction broadly, covering any measure taken in response to conduct the employer regards as culpable and capable of affecting the employee’s presence in the company, function, career or pay. Release from duties therefore does not escape that characterisation by nature, and maintaining pay is not enough to take it outside. Removing the employee by releasing them from their duties, on full pay and without tying the measure to conduct characterised as culpable, has a protective effect comparable to suspension without starting the disciplinary clock. The measure is reversible and prejudges nothing. Its characterisation does, however, depend on its wording and on how it is implemented: a release from duties that asserts misconduct, or that comes with a reduction in pay, may be analysed as a sanction, with the consequences attaching to that re-characterisation. #### Measures not directed at the person Some measures bear on powers rather than on the individual’s presence in the company. They may consist in withdrawing a delegation of authority or signing power, suspending banking authority or closing an IT access. The test remains that of article L. 1331-1: such measures fall outside disciplinary law where they answer an objective need for protection rather than conduct treated as culpable. A measure affecting the employee’s function or career moves closer to the disciplinary sphere, and the assessment is a concrete one. #### Preserving evidence The same holding logic calls for evidence to be frozen. In practice this means suspending automatic deletion on mailboxes and servers, copying the relevant media and informing in writing those who have custody of them. Two sets of constraints apply. The first is that of Regulation (EU) 2016/679: retention constitutes processing of personal data. It requires a legal basis and a defined retention period, the data subjects being informed in accordance with articles 13 and 14 of the Regulation and the processing being entered, where applicable, in the record provided for by article 30. The second concerns the probative value of what is collected, a copy made without method or traceability being open to challenge before the court. Conversely, the destruction of documents after facts liable to prosecution have become known is never a neutral incident. #### Where the person concerned has themselves reported The situation calls for particular examination where the person affected by the measure has themselves made a report. Article L. 1121-2 of the French Labour Code lists the retaliatory measures that may not be taken on account of a report, from sanctions to dismissal by way of discriminatory measures. Their nullity follows from article 10-1 of Law no. 2016-1691 of 9 December 2016 and from article L. 1132-4 of the French Labour Code. That same article 10-1 adjusts the burden of proof: the employee puts forward factual matters suggesting that they made a report, and the employer must then establish that its decision rests on objective grounds unconnected with the report. An interim measure taken in those circumstances will be read in the light of that regime, whatever its author’s intention may have been. #### The role of the lawyer Choosing between precautionary suspension and release from duties is a decision about timing as much as about gravity. It requires anticipating how long the verifications will take, assessing what the alleged facts allow to be characterised at that stage and measuring what each option leaves intact of the disciplinary process. None of these parameters follows from a uniform rule. The wording of the notification follows the same logic. Every term in it will be read by an employment tribunal, and where appropriate placed on a criminal file, which means deciding at that very moment what is written, by whom and in what form. Preserving evidence raises a further difficulty of its own. The question is not to retain everything, but to retain what will remain usable in the proceedings that may follow, in conditions that withstand challenge. A copy taken without method, without traceability and without informing the individuals concerned is almost as difficult to use as a destroyed document. Previous episode: Who should conduct the internal investigation. Next episode: The interview in an internal investigation. See also our internal investigations practice. This material sets out the general legal framework and does not constitute legal advice. ## Conducting an Internal Investigation - [Conducting an Internal Investigation - Episode 1: Opening an investigation, triggers and scope](https://www.ouaknine-avocats.com/en/publications/ouvrir-une-enquete-interne-declencheurs-perimetre) - [Conducting an Internal Investigation - Episode 2: Who should conduct the internal investigation](https://www.ouaknine-avocats.com/en/publications/qui-doit-mener-l-enquete-interne) - [Conducting an Internal Investigation - Episode 3: Precautionary suspension and interim measures](https://www.ouaknine-avocats.com/en/publications/mesures-conservatoires-enquete-interne) ## Pages - [The Firm](https://www.ouaknine-avocats.com/en): home page: the practice in one sentence and its three main fields - [The firm and Alice Ouaknine](https://www.ouaknine-avocats.com/en/about): the firm, Alice Ouaknine's background, working languages - [Expertise](https://www.ouaknine-avocats.com/en/expertise): every field of practice - [Publications](https://www.ouaknine-avocats.com/en/publications): the firm’s own writing, including the police-custody survival guide, and the press articles that quote it - [Contact](https://www.ouaknine-avocats.com/en/contact): address, phone, mobile and email - [ISKA network](https://www.ouaknine-avocats.com/en/iska): the network of independent attorneys the firm belongs to - [Legal Terms](https://www.ouaknine-avocats.com/en/legal): legal notice and cookie policy --- Ouaknine Law Firm, 17 rue de Douai, 75009 Paris, France. +33 (0)1 84 16 20 35. cabinet@ouaknine-avocats.com https://www.ouaknine-avocats.com/en/llms.txt · https://www.ouaknine-avocats.com/sitemap.xml