In a civil trial, the illegality or disloyalty in obtaining or producing a means of evidence does not necessarily lead to its exclusion from the proceedings.
The judge must, when asked to do so, assess whether such evidence undermines the fairness of the proceedings as a whole, by balancing the right to proof and the conflicting rights at stake, the right to proof being able to justify the production of elements that infringe other rights provided that this production is essential to its exercise and that the infringement is strictly proportionate to the aim pursued.
Therefore, the Court of Appeal must be censured for, in order to exclude from the proceedings a clandestine recording of an interview with the employer, holding that the employee had other choices than to record this interview to prove the reality of the harassment suffered for several months and that the infringement of the principles protected in this case was not strictly proportionate to the aim pursued, whereas it was up to it to verify whether the production of the recording of the interview, carried out without the employer's knowledge, was essential to the exercise of the right to proof of the alleged moral harassment, in support of which the employee invoked, as evidence allowing the existence of this harassment to be presumed, the pressure exerted by the employer to accept a mutual termination agreement, and, if so, whether the infringement of the employer's privacy was not strictly proportionate to the aim pursued. This is what the Court of Cassation states in a judgment of 10 July 2024 (n° 23-14.900) published in the Bulletin.
This decision must be approved.
To read the entire 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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