In the event of litigation, illicit or unfair evidence is no longer systematically excluded by industrial tribunals.

Is it possible to clandestinely record your employee or employer, and produce this illicit and unfair evidence during an industrial tribunal trial?

In the event of a dispute between an employee and his employer, it is now possible to produce illicit or unfair evidence. Industrial tribunals no longer systematically exclude them. Details from Sarah Lemoine.

franceinfo: Has the case law recently changed in this area?

Sarah Lemoine: Previously, when an employee and an employer confronted the industrial tribunal, for dismissal or for acts of harassment, for example, the judge systematically excluded evidence obtained by illicit and unfair means. Typically, a discussion recorded on the sly on a smartphone.

But since December 22, 2023, the situation has changed. From now on, the Court of Cassation admits that unfair or illicit evidence, which was already admissible in criminal proceedings, can also be admissible in civil proceedings, therefore at the Industrial Tribunal, but under strict conditions.

What are the safeguards?

Faced with unfair evidence, the judge must determine if it is essential, that is to say if there are no other means to prove the facts denounced. A written document, for example, or a direct witness. If this is the case, it will not be accepted.

The judge must also assess that the harm caused to the person in question – in particular their private life – is proportionate to the aim pursued, summarizes Me François Hubert, at the Voltaire Avocats firm.

Does this also apply to illegal video surveillance?

On February 14, the Court of Cassation continued in this same logic. The case concerned a pharmacy employee, dismissed after being filmed committing theft by the company’s video surveillance.

The employee contested her dismissal, on the grounds that the employer had not informed the employees or staff representatives that they were being filmed, which is illegal. “The Court of Cassation validated this proof, considering, in particular, that the employer had no other means of proving that the employee had stolen.

With this new jurisprudence, are we not entering an era of generalized suspicion?

“This will complicate exchanges between employees and employers, create trouble in work relations,” believes lawyer Diane Buisson. Especially since there are no real legal solutions to protect against clandestine recording.

Installing a wave jammer is punishable by 6 months in prison, recalls his colleague François Hubert. Who also wonders if other unfair evidence will be admitted in the future, before the industrial tribunal. Shadowing, for example, to check whether an employee on sick leave works for another employer.