By Nicolas Lepetit, Partner
Admissibility of unfair evidence: reversal of case law
Case law has established a right to proof. In civil law, particularly in industrial matters, a distinction must however be made between:
- On the one hand, a illicit evidence, in particular infringing on private life, which 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, a unfair evidence, collected without the knowledge of a person or obtained by a maneuver or stratagem, which, until then, was inadmissible (2).
On December 22, 2023, the Court of Cassation, meeting in plenary session, however decided to change its case law, in particular because the border between illicit and unfair evidence is sometimes difficult to draw and such a distinction is not made. nor in criminal matters (3), nor in civil matters by the European Court of Human Rights (4).
In a 1st case, the employer had recorded the employee, without his knowledge, during an informal interview, and relied on his statements to dismiss him. In the 2nd case, a temporary worker who had used the computer station of an absent employee who had failed to close his session, was able to access offensive and homophobic comments aimed at him in a private Facebook conversation, and had informed the employer, who had dismissed him the employee for serious misconduct. In these two cases, the appeals courts ruled that the evidence was unfair and therefore inadmissible. The employers each appealed to the Court of Cassation and, given the question of principle raised, the cases were referred to the plenary assembly.
Operating a turnaround of its case law, the Court of Cassation now judges, as in matters of illicit evidence, that unfair evidence can be presented to the judge as long as it is an essential to the exercise of the rights of the litigant and does not not a disproportionate harm the fundamental rights of the opposing party (privacy, equality of arms, etc.). The judge must therefore balance the right to proof and conflicting rights in the presence. 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, to be admitted, evidence obtained in an unfair manner must be the only means left to a party to assert its claims, whether in plaintiff or defense.
In the 1st case, it will be up to the referring Court of Appeal to say 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 near the Court of Cassation) (5).
In the 2nd case, the Court stuck to the case law according to which an employee can only be dismissed for a reason linked to his personal life if it constitutes a breach of his professional obligations (6), which was not accepted in this case, the high court having considered that the private conversation on Facebook was not intended to be made public and could not be considered as a failure by the employee to fulfill the obligations arising from his employment contract (the attorney general, for his part, pointed out the violation of the secrecy of correspondence) (7).
Nicolas Lepetit
Partner
Prior to joining Ginestié Magellan Paley-Vincent, Nicolas Lepetit worked at Legrand Bursztein Beziz, avocats (LBBa) law firm, then worked at Bersay & Associés for more than 10 years and lastly as Of Counsel.
