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Employer’s right to evidence/Is a private social network conversation grounds for disciplinary action?/Performance objectives must be communicated in French

Published on : 22/02/2024 22 February Feb 02 2024
Newsletter / Recent Case Law
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Employer’s right to evidence 

Under certain conditions, evidence obtained unfairly may be accepted by the judge. 

On December 22, the French Highest Civil Court (Cour de cassation) decided to change its 2011 case law, under which evidence obtained unfairly, i.e. gathered without a person's knowledge, by means of a manoeuvre or stratagem, must necessarily be declared inadmissible by the civil judge (although this does not apply in criminal proceedings). 

Such unfair evidence may now be admitted into the judicial debate in civil proceedings if, after weighing up all the rights involved (right to personal life, right to a fair trial, etc.), it proves to be indispensable and proportionate to the aim pursued.

At issue in this case was the admissibility of evidence derived from an audio recording obtained without the employee's knowledge. In this case, the employer had dismissed the employee for gross misconduct, due to his insubordination, based on two audio recordings obtained during interviews with the employee.

The Cour de cassation specifies that it is necessary to demonstrate that the production of this evidence is indispensable to the exercise of the right to evidence. (Cass. AP., December 22, 2023, no. 20-20.648)

Can a disciplinary procedure be based on a private conversation held on a social network such as Facebook?

A temporary employee, assigned to replace an employee during his leave, unintentionally intercepted, while using the same computer, a private conversation held on the Facebook account of the employee he was replacing, which had remained open. In this conversation, insulting remarks were made about the employee’s sexual orientation, as well as about his line manager. He forwarded the conversation to the employer, who immediately dismissed the employee who had made the offending remarks for serious misconduct.  

On December 22, 2023, the French Highest Civil Court (Cour de cassation) ruled that there was no real and serious cause for the disciplinary dismissal: in line with its jurisprudence that a reason based on the employee’s personal life cannot, in principle, justify disciplinary dismissal, unless it constitutes a breach by the employee of an obligation arising from his employment contract, it considered that a private conversation, not intended to be made public, cannot constitute a breach by the employee of obligations arising from the employment contract (Cass. AP Decembre 22, 2023, no. 21-11.330).

Performance objectives must be communicated in French even if English is used within the company.

The French Labor Code requires that all documents imposing obligations on employees or which employees need to understand to carry out their duties must be written in French.

Caselaw had however allowed for certain exceptions and namely if the employees concerned are not French or when the documentation is received from a company located abroad.

The French Supreme Court, in a published ruling dated 11th October 2023, has reaffirmed this rule, notably as regards communication of the performance objectives contained in incentive and compensation plan, even when established at group level. The common use of English as the working language within the company is not deemed sufficient and the terms and conditions of the compensation plan are therefore not enforceable on the employee (Cass., soc., October 11, 2023, no 22-13.770).
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