Nice labour law lawyer – Evidence in labour law.
Cass. Ass. Plénière, 22 December 2023, no. 20-20.648
In a plenary assembly judgment of 22 December 2023 (no. 20-20.648), the Court of Cassation adopted a reversal of case law with regard to evidence in employment law.
In principle, case law declares evidence obtained unlawfully or unfairly inadmissible (Cass. Soc., 20 November 1991, no. 88-43.120).
Evidence is considered unlawful or unfair when it has been obtained either by an illegal process or without the person’s knowledge.
This is the case, for example, of the recording of a telephone conversation without the interlocutor’s knowledge (Cass. Com., 3 June 2008, no. 07-17.147, no. 07-17.196).
Or the production of audio-visual recordings using surveillance cameras placed without the employees’ knowledge (Cass. Soc. 19 April 2005, no. 02-46.295).
However, sometimes illicit or unfairly obtained evidence is the only means of proof enabling the employee to assert his rights.
In the case in point, in the judgment of 22 December 2023, an employee had transcribed a meeting with his employer that had been recorded without his knowledge.
In accordance with current case law, the judges of the Court of Appeal excluded this evidence from the proceedings, considering that it was unfair and therefore inadmissible.
However, the Court of Cassation decided to overturn this ruling, declaring the evidence provided by the employee inadmissible.
According to the judges, evidence obtained illegally or unfairly should no longer be systematically rejected, but should be subject to a proportionality test between the right to evidence and the right affected by that evidence.
In other words, judges will have to carry out a genuine in concreto review to determine whether the right to evidence needs to prevail over another right.
This is a fundamental change in case law in this area.
Maître DAMY, a lawyer in Nice and an expert in employment law, will support you throughout your employment law proceedings.
