VSwere the good old days of black and white films, and binary law of the proof: before the civil judge, unfairly obtained evidence was inadmissible. Because “the loyalty which must govern labor relations prohibits the employer from resorting to artifices and stratagems to place the employee in a situation which could subsequently be attributed to him for fault”stated the social chamber of the Court of Cassation on January 16, 1991.
Here is the argument from its plenary assembly, ruling out clandestine recordings, on January 7, 2011: “Justice must be done fairly, based on evidence collected and produced in a manner that does not undermine its dignity and credibility. » This solution sometimes leads to impunity shocking public opinion, today more sensitive to discrimination and harassment, where proof is difficult to provide.
Change of heart of this same plenary assembly, on December 22, 2023, in application of the law has the proof dear to the court of Strasbourg: “From now on, in a civil trial, illegality or disloyalty in obtaining or producing a means of proof does not necessarily lead to its exclusion from the proceedings. »
But, be careful: there is no “right to unfair evidence” allowing, in its name, any violation of fundamental freedoms (for example, privacy), a source of civil and criminal liability. The plenary assembly is therefore legitimately very demanding on the conditions to be met for the judge to accept this proof: it must be essential to the exercise of the right has the proof, and “the infringement thus brought to antinomic rights in the presence strictly proportionate to the aim pursued”.
In summary: firstly, without this proof, the litigant could only lose his case, because he cannot have any other evidence. Secondly, the stakes must be high: we cannot go our own way when it comes to respecting the privacy of others, their personal data, or even medical confidentiality.
Great caution
So what are the good reflexes on the manager’s side? No revolution: because, in practice, discreetly recording a conversation, or even playing with a hidden camera, was child’s play since the emergence of the smartphone, and caution was already required.
But the inadmissibility – except in criminal matters – limited its interest: from now on, a door is ajar. But “unsure”: because the litigant (employee or employer) will often be at a loss to know whether his unfair evidence will ultimately be accepted by the judge, or dismissed… after having been contradictorily discussed for ten minutes!
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