France Update: Admissibility of Unfair Evidence: Reversal of Case Law

The case law has enshrined a right to evidence. In civil law, particularly in labour law, a distinction had to be made between:

• On the one hand, unlawful evidence, including evidence that infringes privacy, may be admissible if it is essential to the success of the claim and the infringement of the conflicting rights is strictly proportionate to the aim pursued (1);

• On the other hand, unfair evidence, collected without the knowledge of a person or obtained by a manoeuvre or stratagem, which until then had been inadmissible (2).

However, on 22 December 2023, the Court of Cassation, meeting in plenary session, decided to change its case-law, in particular because the boundary between unlawful and unfair evidence is sometimes difficult to draw and such a distinction is not made either in criminal matters (3) or in civil matters by the European Court of Human Rights (4).

In a 1^era In this case, the employer had registered the employee, without his knowledge, during an informal interview, and had relied on his statements to dismiss him. In the 2^Nde In this case, a temporary worker who had used the computer station of an absent employee who had failed to log off, had been able to access insulting and homophobic remarks aimed at him in a private Facebook conversation, and had informed the employer, who had dismissed the employee for serious misconduct. In both cases, the appellate courts ruled that the evidence was unfair and therefore inadmissible. The employers each appealed to the Court of Cassation and, in view of the question of principle raised, the cases were referred back to the plenary session.

In a reversal of its jurisprudence, the Court of Cassation now rules, as in the case of unlawful evidence, that unfair evidence may be presented to the judge as long as it is essential to the exercise of the rights of the litigant and does not disproportionately infringe the fundamental rights of the opposing party (privacy, equality of arms, etc.). etc.). The judge must therefore balance the right to evidence against the conflicting rights involved. Returning to its previous case law, which could lead to depriving a party of “any means” of proving its rights, the Court of Cassation seems to consider that, in order to be admitted, evidence obtained unfairly must be the only means left to a party to have its claims triumph, whether as plaintiff or defendant.

In the 1^era In this case, it will be up to the referring Court of Appeal to decide whether the recording made without the employee’s knowledge was essential to prove his fault, as well as proportionate (which is not the case according to the Advocate General at the Court of Cassation) (5).

In the 2^Nde In the case, the Court adhered to the case-law according to which an employee may be dismissed for a reason related to his or her personal life only if it constitutes a breach of his or her professional obligations (6), which was not upheld in the present case, the High Court having considered that the private conversation on Facebook was not intended to be made public and could not be analysed as a breach by the employee of the obligations arising from of his contract of employment (the Advocate General had pointed out the breach of the secrecy of correspondence) (7).

• Soc. 30 September 2020, n°19-12.058
• Ass. Plen. 7 January 2011, n°09-14.316
• Crim. 11 June 2002, n°01-85.559
• ECHR 13 May 2008, no. 65097/01
• Ass. Plen. 22 December 2023, n°20-20.648
• Soc. 3 May 2011, n°09-67.464
• Ass. Plen. 22 December 2023, n°21-11.330

Ginestié Magellan Paley-Vincent, France, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact france@transatlanticlaw.com

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