Pursuant to Article 17 II 7° of the Sapin 2 Law, the chairs/presidents, chief executive officers, general managers and managers of companies targeted by said Law are required to implement:
“a disciplinary system to sanction violations of the company’s code of conduct by employees”.
The disciplinary system brings together all the measures that a company reserves the right to impose for what it deems to be a misconduct.
Failure to comply with the disciplinary rules set out in the company’s internal rules and regulations – and, therefore, in the anti-corruption code of conduct that must be incorporated therein – is considered as a misconduct that can warrant a disciplinary sanction.
French companies with 20 or more employees must have internal rules and regulations. Sanctions may not be imposed on staff members unless they are provided for in such internal rules and regulations.
Soulier Avocats assists companies and corporate groups in the development and implementation of an appropriate disciplinary system to sanction any violation of the code of conduct, at each of the following stages:
Definition of the principle of a scale of sanctions
Every single disciplinary sanction must be proportionate to the identified misconduct, as set out in a scale of sanctions.
Implementation of the sanction mechanism
When it is established that staff members have failed to fulfil their duties of integrity and probity, a disciplinary procedure must be initiated against them and proportionate sanctions imposed.
Disciplinary sanctions may be imposed on the basis of the findings of a detailed internal investigation that thoroughly establishes the materiality of the accused person’s misconduct.
The company’s senior management has, therefore, no obligation to wait for a criminal court’s ruling before imposing disciplinary sanctions, insofar as the misconduct is established and serious enough to warrant sanctions.
Inventory of sanctions
An inventory of disciplinary sanctions imposed on the entity’s staff can be usefully drawn up in order to help strengthen corruption risk management mechanisms.
Irrespective of the form and medium used for drawing up this inventory, the company must ensure the strict confidentiality of its content and compliance with applicable personal data protection rules.
The company’s senior management may request that imposed disciplinary sanctions be disclosed, in a way that guarantees total anonymity. This disclosure serves to remind all staff members of the senior management’s commitment to a policy of zero tolerance for any integrity-related and probity-related misconduct.