France: Supreme Court tempers its Ban on the Production of Illicit Evidence in Court

A recent decision of the Court of Cassation of 25 November 2020, creates a surprising precedent on the topic of the validity of evidence. Evidence deemed to be unlawful under the law on information technology and civil liberties and which infringes on an employee’s personal life, may be admitted in court, provided that its production is indispensable (not merely necessary to exercise the right to evidence) and that the infringement of the employee’s rights is strictly proportionate to the aim pursued.

The judgment of 25 November 2020 allows evidence, deemed unlawful in regard to a law on information technology and civil liberties, to be admitted in court proceedings.

It marks an evolution of the Social Chamber’s case law on the unlawfulness of evidence obtained by means of data that should have been declared to the CNIL, the French agency on digital and civil liberties.

Indeed, up to now, the Supreme Court held that such evidence had to be rejected from the proceedings. This meant that if an employee’s misconduct at the origin of the dismissal was only proven by means of such unlawful evidence, the dismissal was consequently considered unfair by the judges.

In the case at hand, the Court admits that the unlawfulness of evidence does not systematically result in its rejection. Rather, it invites the trial judge to examine, in the context of a proportionality review, whether the infringement of the employee’s rights respecting his personal life by such production, is justified in the light of the employer’s right to present evidence. It also specifies that such production must be “indispensable” and no longer merely “necessary” for the exercise of this right.

The ruling is neither entirely surprising nor shocking: it draws inspiration from the decisions of the ECHR in respect of Articles 6 and 8 of the European Convention on Human Rights. Those rulings had admitted evidence obtained at the expense of the right to privacy under Article 8 of the Convention or in breach of domestic law. This was justified on the basis of the right to a fair trial and the right to evidence.

For more information on these articles or any other issues involving labour and employment matters in France, please contact Joël Grangé (Partner) of Flichy Grangé Avocats at grange@flichy.com or visit www.flichygrange.com.