In a decision dated December 22, 2023, the French Supreme Court ruled on the possibility for a party to a litigation to communicate evidence secured in an unfair manner.
In a 2011 decision (French Supreme Court – 7 January 2011 -Nr. 09-14.316), the French Supreme Court had ruled that any evidence obtained by stratagem and/or without the knowledge of the other party must not be considered by a court of justice in France.
This rule was not consistent with:
- French case law in criminal matters in which all evidence must be taken into account regardless of the way it was obtained;
- EHCR case law which states that evidence obtained in an unfair manner may be taken into account by civil courts in accordance with the fair trial rule.
Presentation of the case
In the case at-hand, an employee had filed a claim to challenge his dismissal for gross misconduct. In order to prove the employee’s misconduct, the employer produced a surreptitious recording of a meeting during which the employee had made comments that subsequently led to his dismissal.
The Court of Appeal held that this recording could not be used to ground its decision, since the employee was not aware that he was being recorded. The Cour of Appeal thus ruled that in the absence of any evidence of the employee’s misconduct, his dismissal should be considered unfair.
The employer company filed an appeal against the decision before the French Supreme Court.
Against its own established case law, the French Supreme Court overruled the decision of the Court of Appeal, accepting that evidence obtained in an unfair manner may be taken into account by the courts under two conditions:
- If it is essential, for one of the parties to exercise their right to a fair trial and thus to defend their position;
- Taking this evidence into account must not disproportionately infringe the fundamental right of the opposing party.
This change may lead to an increase of surreptitious recordings by either employees or employers to build a case. Yet, this new rule must be used with caution. Indeed, evidence gathered in an unfair manner may only be used if there is no other way to prove a fact.