It follows from article 6, § 1 and § 3, of the Convention for the Protection of Human Rights and Fundamental Freedoms guaranteeing the right to a fair trial, that if the judge cannot base his decision solely or in a decisive on anonymous testimonies, it can nevertheless take into consideration anonymized testimonies, that is to say made anonymous a posteriori in order to protect their authors but whose identity is nevertheless known by the employer, when these are corroborated by other elements making it possible to analyze their credibility and relevance.
The judgment must therefore be censored which, in order to annul the disciplinary sanction pronounced against an employee, retains that the "anonymous attestation" of one of his colleagues and the report of his interview with a member of the resource management documents produced by the employer, are without probative value on the grounds that it is impossible for the accused person to defend himself against anonymous accusations, whereas the Court of Appeal had found that these two documents were not the only ones produced by the employer to characterize the fault of the employee and that it was up to him to assess its value and scope.
This is affirmed by the Court of Cassation in a judgment of April 19, 2023 (n°21-20.308).
1) Facts and procedure
Mr. [N] was hired as a manufacturing agent on March 1, 2013 by Airbus operations.
The employee was subject to a disciplinary layoff notified on July 11, 2017.
he seized the industrial tribunal for the purpose of annulment of this sanction.
In a judgment of May 28, 2021, the Toulouse Court of Appeal canceled the disciplinary sanction pronounced against an employee, since the "anonymous attestation" of one of his colleagues and the report of his interview with a member of human resources management produced by the employer, are without probative value on the grounds that it is impossible for the accused person to defend himself against anonymous accusations.
The employer appealed.
2) Means
The employer complains about the judgment of the Toulouse Court of Appeal of May 28, 2021, then:
“4°/ that if the judge cannot base his decision solely or decisively on anonymous testimonies from employees, nothing prevents him from taking such testimonies into consideration when they are corroborated by other elements and in particular by other testimonies, not anonymous, the comparison of which makes it possible to establish the materiality of the facts set out therein;
that by refusing to examine the statement of an employee who had agreed to testify anonymously, such as the report of the interview that a representative of the company Airbus had had with him, the Court of Appeal once again violated articles 201 and 202 of the code of civil procedure;
5°/ failing to take into consideration the certificate established anonymously by an employee fearing reprisals from colleagues whose behavior he denounced, the Court of Appeal could, as an element whose value and scope were subject to his assessment, examine the report of his interview with Mrs [G], drawn up by the latter;
that by also refusing to do so, the Court of Appeal violated Article 1353 of the Civil Code. »
3) Workaround
Pursuant to Article 6, §1 and 3, of the Convention for the Protection of Human Rights and Fundamental Freedoms and the principle of freedom of evidence in industrial tribunal matters, the Court of Cassation affirms that:
“It follows from this text guaranteeing the right to a fair trial, that if the judge cannot base his decision solely or decisively on anonymous testimonies, he can nevertheless take into consideration anonymized testimonies, that is to say made anonymous a posteriori in order to protect their authors but whose identity is nevertheless known by the employer, when these are corroborated by other elements making it possible to analyze their credibility and relevance.
To cancel the sanction of disciplinary layoff imposed on the employee by declaring without probative value the "anonymous certificate" of an employee produced by the employer and the report of his interview with a member of the human resources department, the judgment holds that it is impossible for the accused person to defend himself against anonymous accusations.
In so ruling, when it had noted that these two documents were not the only ones produced by the employer to characterize the fault of the employee on which he was relying and that it was up to him to assess their value and scope , the Court of Appeal violated the above-mentioned text and principle”.
4) Analysis
This is the first time, to our knowledge, that the Court of Cassation has ruled on the admissibility of anonymized testimonies.
In a judgment of July 4, 2018 (n° 17-18.241), the Court of Cassation had affirmed that “the judge cannot base his decision solely or decisively on anonymous testimonies”.
The Court of Cassation renders its decision under the visa of article 6-1 and 3 of the ECHR which guarantee the right to a fair trial.
If the judge cannot base his decision solely or decisively on anonymous testimonies, he can nevertheless take into consideration anonymized testimonies, that is to say made anonymous a posteriori in order to protect their authors but whose identity is nevertheless known by the employer, when these are corroborated by other elements making it possible to analyze their credibility and relevance.
In any case, the use of anonymous or anonymized testimonies, to justify disciplinary action or dismissal, should be used sparingly by employers.
This is what emerges from the judgment of April 19, 2023 of the Court of Cassation.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Irene Gaston
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
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