Smile, you are being videotaped (and fired)!
Contentieux prud'homal
Smile, you are being videotaped (and fired)!
As a reminder, the new playbook for illegal or disloyal evidence in French civil courtrooms (including French employment courts) looks like this:
illegal or disloyal evidence (e.g. secret audio recordings) is not necessarily dismissed by judges;
judges must assess whether such illegal or disloyal evidence undermines the fairness of the proceedings as a whole, by balancing the right to evidence against the competing rights involved (e.g. right to privacy);
the submission of illegal or disloyal evidence needs to be "indispensable" to the effectiveness of one party's right to evidence (i.e. couldn't loyal or legal evidence be used to achieve the same goal?); and
The infringement on competing rights needs to be "strictly proportionate" to the goal at stake.
Yesterday, the French Supreme Court gave us a compelling example of this balancing act:
A cashier had been terminated for serious misconduct, as video evidence revealed theft.
The video surveillance system had not been implemented in accordance the applicable regulations (including: information and consultation, data protection and administrative requirements). The employee contended that this illegal video evidence had to be disregarded, because it disproportionately infringed on her personal life.
French Supreme Court disagrees: the court of appeal noted that the viewing of the video had been limited in time, occurred in the context of missing inventory, after initial unfruitful searches, and had been carried out by the company's director alone. The court of appeal therefore thoroughly balanced the employee's right to private life with the employer's right to the smooth running of its operations and considered the legitimate interest of the company. As a result, the court of appeal rightfully decided that the use of the evidence captured through the illegal surveillance system was indispensable to the effectiveness of the company's right to evidence and proportionate.
Also worth noting: in a recent and similar case, the French Supreme Court came to the opposite conclusion, following the same legal reasoning (Soc. 8 mars 2023, n° 21-17.802, Bull).
France-based employers should keep a close eye on upcoming rulings on evidentiary rules - interesting times are ahead!