The French Supreme Court continues to shape the contours of its recent case law regarding the right to evidence and the principle of fair and admissible proof.
Flashback : at the end of 2023, the French Supreme Court has unexpectedly reversed its traditional position and accepted that, in civil litigation, a party can use evidence obtained unfairly when it is (i.) essential to assert its right to evidence and (ii.) if the infringement is strictly proportionate to the aim pursued (FSC, 22 December 2023, case no. 20-20.648).
A new decision provides further illustration to this new case law.
In the case at hand, a company (a call center) had dismissal telesecretaries for gross misconduct on the ground that they were waiting too long to answer calls. The employer relied on data processed from the call management software to ground its decision to terminate the employment contracts.
The employees later challenged the validity of their termination. The claimants argued, based on article L. 1222-4 of the French Labor Code, that the employees had to be informed in advance of the use of such data processing system and of the monitoring of their activities.
The Court of appeal dismissed the employees’ claims who brought their action in front of the French Supreme Court, arguing the the Court of appeal failed to demonstrate that such proof was essential.
The Supreme Court finally dismissed the employee’s appeal and found that, while the use of this software could amount to a breach of privacy (given that employees were not informed of the use of the data processing system), the employer had a legitimate reason to use such system for the smooth running of the Company. Furthremore, the employer proved that it had only used data relating to professional communications and had used a bailiff to guarantee the reliability of the records.
The French Supreme Court therefore concluded that the Company met the criteria for admissible evidence eventhough it had been obtained illegally.
Source : French Supreme Court decision