One everywhere, proof in the middle

Cass. ass. plén. December 22, 2023, no. 20-20.648

When labor law moves closer to criminal law and admits – subject to conditions – evidence obtained in an “unfair manner” … this is a case law reversal that opens up bold new perspectives and is bound to generate debate in practice.

• A blurred line between illicit and unfair evidence

Prior to this December 22, 2023 ruling, the Cour de Cassation drew a distinction between “illicit” and “unfair” evidence.

However, the Cour de cassation noted that it is “difficult to draw a clear line” between the two types of evidence.

• Unfair evidence, unlawful evidence, anything goes… subject to conditions

Since the ruling handed down by the Assemblée Plénière of the Cour de Cassation on December 22, 2023, there has been a reversal of case law: everything is aligned with the rules applicable in the case of unlawful evidence: “in civil proceedings, unlawfulness or disloyalty in obtaining or producing a means of evidence does not necessarily lead to its exclusion from the proceedings”.

From now on, it is important to remember that unlawful or unfair evidence that infringes on conflicting rights (such as the right to privacy) is not de facto inadmissible.

The right to evidence may in fact justify the production of elements that infringe these other rights on two conditions:

1. the production is essential to its exercise, i.e. the evidence provided must be the only one possible to establish the truth
2. and that the infringement is strictly proportionate to the aim pursued.

• In practice: recording without the employee’s or employer’s knowledge may be allowed

This case concerned an employee who had been given a precautionary layoff and then dismissed for gross misconduct for failing to pass on his sales activity, the collapse of his customer portfolio and refusal to apply instructions.

To prove misconduct, the employer, who had interviewed the employee several times beforehand, provided evidence in the form of sound recordings made without the employee’s knowledge.

The Court of Appeal found that this was unfair evidence. Applying the case law in force since 2011, it therefore did not fail to set it aside.

Answer and reversal of the Cour de cassation’s case law: unfair evidence is not necessarily inadmissible!

The case was referred back to another Court of Appeal, so that the two above-mentioned conditions could be verified and a “proportionality test” carried out by the trial judges (these are the terms used in the Court of Cassation report attached to the judgment under review).

• A turnaround in tune with the times

In reaching this decision, the Plenary Assembly relied in particular on the case law of the European Court of Human Rights. This jurisprudence imposes a uniform control on all evidence, without distinguishing between that considered illicit or unfair. It emphasizes the need to ensure equality of arms between the parties in a trial (ECHR May 13, 2008, req. no. 65087/01).

In addition, as the rapporteur pointed out, the reversal made by the Plenary Assembly allows us to take into account “the growing role played by communication technologies”.

• A new position already applied

The Cour de cassation wasted no time in applying its new position.

In a ruling handed down on January 17, 2024 (Cass. soc. January 17, 2024, n°22-17.474), the French Supreme Court examined the validity of a clandestine recording.

The case concerned an employee who had secretly recorded a meeting he had had with members of the former CHSCT.

He wanted to use it to demonstrate the moral harassment of which he felt he was a victim.

The Cour de cassation, carrying out its new proportionality review, rejected this element insofar as the requirement that the evidence be “indispensable” was not met.

The judges noted that :

• on the one hand, the occupational physician and the labor inspector had been involved both in the investigation carried out by the CHSCT and in the investigation report,
• secondly, the other evidence provided by the employee alone suggested the existence of moral harassment.

• Beware, you are being bugged

But what does that tell us?

From now on, both employer and employee could use clandestine or unauthorized recordings.

As a result of this jurisprudence, it is to be feared that employees, equipped with their smartphones, will record their prior appraisal or other meetings.

It is therefore important to be vigilant from now on, and not to fall into the traps of orality, as some people, with malice aforethought, succeed in forcing their employer to say things he had no intention of saying.

Of course, there are safeguards: essential and proportionate proof, but in practice, this will necessarily raise several questions:

• how to prove that the person recorded is actually the person to whom the statements are attributed? There may be problems with the acceptability of the evidence, even if it has been deemed admissible (in criminal cases, this is already the case).
• how should we react when confronted with clandestine evidence: should we fight to have it rejected (which could be interpreted as a desire to avoid being confronted with a compromising element) or accept it in order to defend ourselves against it? will naturally depend on its nature and content
• even if the piece is rejected, don’t judges, who generally take note of it before deciding whether to reject it (which is the aberration of the system), run the risk of taking it into account as part of their decision, albeit in a different way?

There’s no doubt that there will be many rulings on this point in the near future, which will hopefully provide a clearer outline of a subject that can become more than thorny for everyone.

And which, whatever happens, is likely to put an end to peaceful oral relations within companies.