France: Equality of treatment: nominative payslips can be obtained by the employee to prove her case

Under French law, individuals can ask the judge, before any judicial action on the merits, to take the necessary measures to establish or retain the elements of proof of facts on which the resolution of a dispute may depend.

 

In the present case, a high-level female employee considered that she had been paid less than her male colleagues occupying functions of a similar level and asked the judge that the employer communicate her other employees’ payslips. The question was asked of whether payslips on which some information had been hidden but other (name, surname, classification, monthly and annual remuneration) still appeared could be ordered to be communicated with regards to the right to private life and applicable rules on data protection, and particularly the GDPR.

The French Supreme Court holds, in a ruling dated March 8, 2023, that a two-step approach must be followed by the judges:

• first of all, the judge must determine whether the communication is necessary for the individual to exercise his/her right to prove the alleged inequality of treatment and proportionate to the aim pursued;
• second of all, the judge must determine whether the elements whose communication is requested may affect the personal lives of other employees and verify which measures are essential to the exercise of the right to evidence and proportionate to the aim pursued, if necessary by limiting the scope of the production of the documents requested.

In the present case, the Court held that the communication of such payslips, although it affected other employees’ personal life, was essential to the exercise of the right to evidence and proportionate to

the aim pursued, i.e. the defense of the employee’s legitimate interest in equal treatment of men and women in employment.

Please note that a similar position had already been adopted in September 2021 regarding a discrimination case.

Key Action Points for Human Resources and In-house Counsel

A decision to be kept in mind in case of request by an employee to obtain such documents.