Lhe exercise of the right to evidence in employment tribunal matters regularly raises questions. With regard to the evidence provided by the employer, it is most often called into question by the employee, arguing either that the employer obtained the evidence in an unfair manner, or that by producing it, he undermined to the private life of the employee from which the latter benefits outside but also within the company.
It was by invoking unfair access to evidence that an employee attacked the industrial tribunal the admissibility of the documents produced by her employer to counter her request for back pay for overtime. In support of this request, the employee produced a weekly breakdown of her working hours, as well as emails aimed at attesting to the length of her working days.
In defence, the employer disputed this count by producing extracts from the electronic diary recorded on the professional computer of this employee. The Labor Court and then the Court of Appeal dismissed the diary extracts on the grounds that they came from the employee’s personal diary and that the employer did not justify the regular conditions for obtaining them.
The presumption of professional character
The judges therefore relied exclusively on the elements produced by the employee to assess the materiality and the number of overtime hours. The employer seized the Court of Cassation which, in a judgment of November 9, criticizes the Court of Appeal for having rejected the evidence provided by the employer when it was not disputed that the disputed documents came from the employee’s electronic diary available on her professional computer.
According to the Court of Cassation, the Court of Appeal should have investigated whether the documents had been identified as personal by the employee. This position is consistent with the line of conduct followed by the Court of Cassation for years concerning the evidence obtained by the employer by accessing the employee’s professional tool.
Indeed, it judges that the files and files created by the employee on the computer made available to him by the employer for the performance of his duties are presumed to be of a professional nature, unless the employee identifies them as being personal. This presumption of a professional nature also applies to messages received and sent from professional e-mail, Internet connections via the professional computer and messages from the professional telephone.
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