Unlawful employee monitoring system: what conditions for admissibility?

Because it restricts rights and freedoms by nature, the implementation of a system for monitoring and surveillance of employees' activities is strictly regulated: (i) the system (video surveillance system, badge reader, etc.) must be justified by the nature of the task to be performed and proportionate to the goal sought, (ii) employees must be informed beforehand, (iii) the works council, if it exists, must have been consulted beforehand, and (iv) the rules regarding the processing of personal data must have been observed. If one of these conditions is not met, the evidence obtained from the surveillance system is unlawful, which can be particularly problematic for the employer, especially when the evidence was the basis for a dismissal.

Three rulings of the French Supreme Court rendered on March 8, 2023 (n°21-17.802, n°20-21.848 and n°21-20.798) illustrate this specific difficulties, in various situations: video surveillance set up without the employee being informed of its purpose beforehand; misappropriated badges or police reports obtained in an irregular manner.

The French Supreme Court had already accepted that, in this type of situation, illicit evidence could be taken into account by the judge to demonstrate a wrongful behavior, provided that it is essential to this demonstration. Moreover, the infringement of the employee's personal life must be strictly proportionate to the aim pursued.

In these decisions of March 8, the French Supreme Court provides new fundamental clarifications by ruling that :

• The examination of illicit evidence will only be admissible under the condition that the party invoking it expressly states its right to a fair trial, from which the right to evidence may be invoked. In the absence of such a request, the judges will not proceed to this analysis and will simply exclude the illicit evidence.
• The employer must demonstrate that the examination of the illegal evidence is essential, since there is no other evidence of the employee's wrongful conduct. For example, in one of the cases referred to, the employer communicated unlawful video surveillance recordings, arguing that it confirmed irregularities revealed by an audit report which had nevertheless not been communicated to judges. In this context, the Court of Appeal, with the approval of the French Supreme Court, dismissed the video surveillance recordings on the grounds that the employer had other means of proof.

Obtaining the admissibility of illicitly obtained evidence will therefore not be easy in practice. Indeed, the courts could dismiss the illicit evidence by invoking the possibility for the employer to present other evidence or by hiding behind an infringement of the employee's personal life that is disproportionate to the aim sought.

Proof of gender pay gap: the interim relief judge can order the communication of other employees' pay slips

In a decision of March 8, 2023 (n°21-12.492), the French Supreme Court recalls that an employer may be ordered to communicate elements likely to affect the personal life of certain employees if this is absolutely necessary to prove a gender pay gap.

In this case, an employee, asserting that she had been paid less than some of her former male colleagues, asked the interim relief judge to order the employer to communicate the pay slips of these male colleagues on the basis of article 145 of the French Code of Civil Procedure. As a reminder, this is a procedure by which the judge can order prior investigative measures to establish or preserve, before a trial on the merits, the proof of facts on which the solution of the dispute may depend.

The labor court, approved by the Court of Appeal, had approved this request and ordered the communication to the employee of the pay slips of eight employees, with their personal data blacked out, except their names, their classification, their detailed monthly remuneration and their total gross remuneration per calendar year.

The employer opposed this decision, arguing that the communication of the pay slips was not essential, as the employee produced other elements that suggested gender pay gap. It also argued that the disclosure of the pay slips was a disproportionate infringement of the employee's right to privacy. However, he did not win the case before the French Supreme Court, which held that the disclosure of the pay slips, even though it infringed on the personal lives of the employees concerned, was essential to prove the existence of a salary inequality.

Communication on the replacement of an employee: beware of de facto dismissal

In a decision of March 22, 2023 (n°21-21.104), the French Court of Cassation approves the Court of Appeal of Versailles having judged that was unfair the "de facto" dismissal of a journalist due to the broadcasting, in June 2016, of a press release from which it emerged that in September 2016 the employee would no longer appear in the program schedule and would be replaced by another presenter. According to the Court of Appeal and the French Supreme Court, this press release of June 2016 reflected the employer's clear and unequivocal intention to terminate the employee's employment contract, rendering her dismissal was unfair.

This decision reminds us that employers have to be vigilant until the notification of the dismissal: internal and external communications on the composition of the department to which the employee is assigned, or the presentation of an organization chart (even a prospective one), must not indicate the elimination of the employee's position or imply his or her definitive replacement before the dismissal letter is sent. Sending a letter of termination at a later date will not regularize a de facto dismissal.

Authored by Alexandra Tuil and Hélène de Nazelle.