Employers can use anonymous testimony to prove employee misconduct

Cass. soc. April 19, 2023, no. 21-20.308

In a ruling handed down on April 19, the French Supreme Court (Cour de cassation) ruled on the admissibility of an attestation in the form of anonymized testimony and the minutes of the same witness’s interview with a member of the company, produced in order to demonstrate the materiality of the facts complained of in the context of a disciplinary sanction.

The High Court considers that it is up to the trial judges to take them into account, despite the anonymization, since they were not the only evidence produced by the employer to characterize the alleged misconduct.

In this case, an employee was given a 15-day disciplinary layoff following various behaviors considered serious by his employer.

The employee challenged the sanction through the courts, and the Conseil de prud’hommes de Toulouse ruled in his favor, ordering the employer to :

– reimburse salaries related to the layoff ;

– pay the sum of €1,000 in damages for loss suffered as a result of this sanction.

The case was referred to the Toulouse Court of Appeal, which handed down a decision that caught our attention.

The employee was accused of a number of very serious acts, including :

– insulted co-workers;

– gave other employees particularly pejorative nicknames;

– sprayed an employee with cooking oil;

– touched the private parts of members of his team.

In support of the sanction, the employer produced a number of documents, including an anonymized certificate, accompanied by a report of the interview that a company representative had had with the person who did not wish his identity to be revealed.

However, the Court refused to examine these documents on the basis of a particularly partisan motivation, since in its view:

“it is impossible for the accused to defend themselves against anonymous accusations”.

On the other hand, it rejects a second testimony, given by a person who had intervened voluntarily as an accessory to the appeal proceedings, on the grounds that his comments did not :

“It is no longer a testimony, but only a statement, since a party cannot, by definition, testify impartially on its own behalf.

As these documents have been excluded from the proceedings, the court considers that the facts of the case have not been established, and confirms the judgment.

The High Court then heard the case, and overturned the ruling rejecting the two pieces of evidence.

First of all, it considers that the fact of being a voluntary intervener in a proceeding does not render the testimony given by this party irrelevant, since it does not make any claims in a personal capacity, and is limited to supporting those of the principal party.

With regard to the second ground of appeal, the Court first recalls the principle that the judge cannot base his decision solely or decisively on anonymous testimony, and adds that it is nevertheless possible to take into account anonymous testimony, i.e. testimony rendered anonymous a posteriori in order to protect its authors, but whose identity is nonetheless known to the employer, “when they are corroborated by other elements that allow us to analyze their credibility and relevance”.

In our view, such a solution is to be welcomed.

From a purely legal point of view, such a solution is fully in line with the principle that evidence is free in industrial tribunal cases.

In addition, and in practice, it complies with the provisions of Articles 6§1 and 3 of the French Convention for the Protection of Human Rights and Fundamental Freedoms, which stipulate that the judge may only base his decision solely or decisively on anonymous testimony if the content of the document was intended to relate deviant behavior on the part of an employee, which is corroborated by other documents produced at the hearing.

On November 25, 2020, it accepted evidence obtained using data that should have been declared to the CNIL, and held that unlawfulness did not automatically lead to its rejection. The judge is required to consider whether the infringement of the employee’s personal life caused by such production is justified in terms of the right to evidence, but also indispensable to the exercise of this right.

In the light of this trend in case law, it would have been illogical to validate the reasoning of the Toulouse Court of Appeal, given that the anonymized testimony had not been obtained by an illicit process, and that it was corroborated by other documents.

What’s more, the employer had anonymized the report at the request of the witness, who feared reprisals, which is easy to understand given the seriousness of the acts reported, and the fact that the person sanctioned may not have left the company (since she was only laid off).

There was therefore no unfair maneuvering on the part of the company, but only a desire to protect the health and safety of an employee.

While we welcome such a decision, we also hope that the Court will go further in the future, in particular by authorizing procedures aimed at anonymizing testimonies, and reserving a version including the identity of witnesses for trial judges only, following the example of case law relating to proof of the existence of 2 members enabling the creation of a trade union section in a company (which authorizes a trade union to identify its members before the magistrate alone).

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