In a decision of March 19th, 2025 (23-19.154), the Social Division of the Court of Cassation ruled on the admissibility of anonymized testimonies in the context of labor court litigation. It reiterates that while the judge cannot base his or her decision solely or decisively on such testimony, it may still be taken into account provided that it is corroborated by other evidence that allows for an analysis of its credibility and relevance.
In the absence of such evidence, the High Court censures the decision of the Court of Appeal, which had refused to attribute probative value to anonymized testimony collected by a bailiff, without examining its necessity for the exercise of the right to evidence and whether the interference with a fair trial was strictly proportionate to the objective pursued.
This decision is part of recent case law that seeks to reconcile the right to evidence with the fundamental principles of civil litigation.
Analysis.
The ruling continues a trend in case law initiated by the Court of Cassation and inspired by European law, illustrating the desire to reconcile the right to evidence and the procedural guarantees of a fair trial. Indeed, the seminal ruling of July 4, 2018 (No. 17-18.241) establishes the principle that a judge cannot base his or her decision solely or decisively on anonymous testimony, drawing inspiration from the case law of the ECHR [1].
However, in the face of doctrinal criticism and evolving case law, the Court of Cassation has softened this position with the rulings of April 19, 2023 (No. 21-20.308 and No. 21-20.310), which allow the use of anonymized testimony, provided it is corroborated by other evidence.
In this case, the court thus reiterates that while the principle of freedom of evidence prevails in labor court matters, it does not exempt the court from compliance with the legal and jurisprudential rules relating to the admissibility of evidence. Article 9 of the French Code of Civil Procedure requires that evidence be provided "in accordance with the law," and the European Court of Human Rights (ECHR) ensures that the right to a fair trial, guaranteed by Article 6(1) of the European Convention on Human Rights, includes the opportunity for the parties to present their evidence.
The question raised by the judgment of March 19, 2025, concerns the admissibility of anonymized testimonies, i.e., testimonies whose authors' identities have been concealed by the bailiff for protection reasons, but whose identity is known to the employer and the original is available to the judges. A distinction must be made between anonymized testimonies and truly anonymous testimonies, which are in principle excluded due to their reduced credibility and their impact on the rights of the defense.
This ruling thus confirms the admissibility of anonymized testimonies provided they are accompanied by corroborating evidence that allows their credibility to be assessed. It thus reaffirms the need to reconcile the right to evidence with respect for fundamental procedural guarantees. This approach aims to ensure a fair balance between the right to evidence and the rights of the defense, while protecting witnesses from potential reprisals. This balance is essential in a context where testimonies can be crucial in establishing certain facts, particularly in matters of harassment or discrimination at work. Therefore, the review exercised by trial judges is particularly important, as they retain their sovereign power of assessment regarding the probative value of the evidence produced.
Ultimately, the Court of Cassation here confirms a pragmatic solution, balancing the imperatives of employee protection and the requirements of a fair trial.
The impact of this decision on labor law disputes will therefore be closely monitored, particularly with regard to the assessment by trial judges of the necessity and proportionality of anonymizing testimony.
A trend toward greater flexibility could emerge, provided that trial judges adopt a rigorous approach to examining evidence.
To read the full brief, click on the link below.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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