Recordings of pre-redundancy interviews: where do things stand?

Last April, the Criminal Division of the Cour de Cassation (French Supreme Court) addressed a crucial issue - the increasingly widespread situation of a preliminary interview being recorded by one of the participants without the knowledge of the others. In this case, following the recording by a trade union representative of comments made during a meeting prior to the dismissal of an employee, the company's Managing Director filed a complaint for breach of privacy by recording private or confidential words, on the basis of Article 226-1 of the Criminal Code, which punishes recordings made without the knowledge of their author, where they infringe the privacy of others. The offence is punishable by one year's imprisonment and a fine of €45,000 (c. pén. art. 226-1). In this case, however, the Criminal Division of the Cour de cassation approved the dismissal of the criminal proceedings by the investigating judge, on the grounds that the offence had not been established. (Cass. Crim. 12 April 2023, N°22-83581 FD) The Court of Cassation ruled that there could be no criminal offence of invasion of privacy on the part of the Chief Executive, since the interview was exclusively professional and not private. It must therefore be concluded that the company is not a setting in which the right to privacy can be exercised. Already stated more than 30 years ago (Cass. crim. 16 January 1990, no. 89-83075, B. crim. n°25), This approach could have changed with the proliferation of recording methods, particularly mobile phones, but above all with the latest developments in case law on the admission of evidence. As a reminder, the Paris Court of Appeal has accepted the admissibility in court of a recording obtained by an employee without his employer's knowledge (Paris Court of Appeal, 18 January 2023, appeal no. 21/04506). This approach was confirmed by the Labour Division of the Court of Cassation, which in 3 rulings handed down on 8 March last (appeals 21-20 798; 21-17.802 and 21-20 848) accepted the admissibility of evidence obtained unfairly, subject to the following conditions:

• That this means of proof is essential to ensure the right to evidence
• That the production is not disproportionate to the aim pursued

At this stage, it is obviously legitimate to wonder whether the courts would take the same approach if the employer recorded the preliminary interview without the employee's knowledge. In the light of the reasons given by the Chambre Sociale, as well as a ruling from September 2020, it seems to us that a positive response can be given. In this case, the Labour Court had ruled that the employer's production of a photograph taken from an employee's Facebook account to which it did not have access, if it was indeed an invasion of privacy, was admissible on the basis of the same criteria. The judgment states: "On the basis of these findings, the Court of Appeal pointed out that the production of information infringing on the employee's private life was essential to the exercise of the right to evidence, and that it was necessary to produce the information in question. proportionate to the aim pursued, namely the defence of the employer's legitimate interest in the confidentiality of its affairs. (Cass. soc. 30 September 2020, no. 19-12058 FSPBRI). On reading the grounds of this ruling, it is therefore interesting to wonder whether, rather than invoking the protection of the Chief Executive's privacy, it would not have been preferable to invoke business secrecy, the protection of which is now formally established by the Commercial Code following transposition by Law no. 2018-670 of 30 July 2018 transposing the European Directive of 8 June 2016. It should be remembered that breaches of business secrecy and secrecy of correspondence are punishable under articles L.151-1 of the French Commercial Code and 226-15 of the French Criminal Code. As regards the recording of the preliminary interview, which has now become widespread, it must now be considered as a risk to be integrated, and internal procedures adapted accordingly, which could involve either the signing at the beginning of the interview of a confidentiality undertaking including a prohibition on concealed recording, or - and perhaps more simply - by a recording expressly agreed to in advance by all the participants in the interview...