The right to evidence of discrimination and protection of the comparator employees' personal data
Cass. soc., 4 March 2026, n° 24-20.428
An interesting decision from the French Supreme Court on the interplay between the right to evidence of discrimination and the protection of other employees' personal data used for comparison.
An employee, dismissed for unfitness and the impossibility of redeployment, had applied to the French employment court in summary proceedings in order to obtain, on the basis of Article 145 of the Code of Civil Procedure, the disclosure of documents intended to establish facts suggesting gender discrimination, relating in particular to slower career progression than that of her male colleagues.
The court of appeal had ordered the disclosure of certain documents, in particular the December payslips of the male employees who had held the position of project director between 1 March 2013 and 31 December 2022, as well as the staff register for the same period, stating that the employer could redact the concerned employees' first and last names.
The employee argued that identifying the comparator employees was indispensable to exercising the right to evidence.
The French Supreme Court dismisses the appeal.
It reiterates that "the right to evidence may justify the production of material infringing personal life provided that such production is indispensable to the exercise of that right and that the infringement is proportionate to the aim pursued".
It specifies that a judge hearing a request for the disclosure of documents on the basis of Article 145 of the Code of Civil Procedure must:
consider whether the requested disclosure is necessary to the exercise of the right to evidence of the alleged discrimination and proportionate to the aim pursued, and whether there is thus a legitimate reason to preserve or establish, before any trial, evidence of facts on which the outcome of the dispute might depend;
where the requested material is likely to infringe the personal life of other employees, verify which measures are indispensable to the exercise of the right to evidence and proportionate to the aim pursued, if necessary by limiting of its own motion the scope of the requested disclosure;
and ensure compliance with the principle of minimization of personal data, in particular by ordering the redaction of the comparator employees' personal data that are not indispensable to the exercise of the right to evidence.
The Court also reiterates that it is for the judge to enjoin the parties to use the personal data thus disclosed solely for the purposes of the discrimination claim.
Source: French Supreme Court, 4 March 2026, appeal n° 24-20.428