Beware: conversations can be recorded!
When seeking compensation for a loss before a court of law, each party must prove the facts necessary for the success of its claim. This also applies to harassment cases. However, the rules differ depending on whether the claim is brought before a criminal court or an industrial tribunal.
What methods of proof are authorized before the Industrial Tribunal (Conseil de Prud’hommes)?
Before the Conseil de Prud’hommes, evidence is free.
This means that you can produce various types of evidence, such as SMS exchanges, photos, bailiff’s reports, testimonials, etc.
There is, however, a limit to this freedom: the principle of fair evidence. Evidence must be obtained without stratagems designed to mislead the adversary.
For example, a voice recording made without the knowledge of the person being recorded is considered to be unlawful evidence, as it has been obtained by unfair means.
The French Penal Code punishes with one year’s imprisonment and a fine of 45,000 euros the deliberate violation of a person’s privacy, by recording private or confidential words without their consent.
In addition to the risk of prosecution, as unlawful evidence, the recording must in principle be excluded from the debate before the court.
Is it still possible to record a conversation to demonstrate the reality of harassment?
When it comes to harassment, it can be difficult to build up a case to defend oneself, since the facts often take place without witnesses, and without a written record.
This reality is even more acute in smaller organizations, where there are no employee representatives or a contact person who can initiate a harassment investigation.
While recordings can be produced and communicated to the police under criminal law, in principle they are inadmissible as evidence before the industrial tribunal.
This difference can be seen as particularly unfair for victims, for whom recordings can be the only means of proving the facts.
However, it seems that the position of the Cour de Cassation is changing in this area, which could make it easier for the victim to demonstrate such facts, and increase the chances of success of an action before the Conseil de Prud’hommes.
Indeed, in a ruling dated November 25, 2020, the Cour de Cassation states that “the illegality of a means of evidence does not necessarily entail its rejection from the debates, the judge having to assess whether the use of this evidence undermined the fairness of the proceedings as a whole” (Cass.soc. November 25, 2020 n°17-19523).
In this case, it was not a recording that had been used, but the logs, log files and IP addresses of the employee involved in the disciplinary proceedings.
Subsequently, the BOURGES Court of Appeal validated the use of a recording in support of a request to reclassify a dismissal as null and void on the grounds of discrimination (CA BOURGES, March 26, 2021).
The Court explained that the right to evidence may justify the production in court of elements extracted from a conversation, even a private one, provided that such production is indispensable to the exercise of this right and that the infringement is proportionate to the aim pursued.
It should be stressed, however, that this was a special case. In this case, although the conversation had been recorded without the employer’s knowledge, it had taken place in a place open to the public, in full view of everyone, including three employees, two of whom said they had been able to hear snatches of it.
The Court ruled that production of the recording was possible, provided that it was indispensable to the exercise of this right, and that the infringement was proportionate to the aim pursued.
This innovative analysis has not yet been validated by the Cour de Cassation, but it is promising, even if it is advisable to be cautious for the time being, given the risk of criminal conviction.
As an employer, what should I do if an employee reports harassment?
We advise you to be vigilant in the face of alerts evoking facts likely to characterize a situation of harassment, and not to take them lightly.
It is important to react swiftly and to conduct an appropriate investigation, in order to avoid the risk of being found guilty of failing to comply with your safety obligation.
***
Whether you are an employee or an employer, are you faced with a situation that could be construed as moral harassment? An AGN network lawyer in your area can advise you on the best strategy to adopt.
Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Employment Department
09 72 34 24 72
