Can a company justify the failure to provide information required by the summary judge by the need to obtain the prior authorization of its employees?
This is the question to which the Court of Cassation answered with a judgment of March 16, 2021 (n ° 19-21063). [[Cass., Soc., March 16, 2021, n ° 19-21063: https://www.legifrance.gouv.fr/juri/id/JURITEXT000043302197?init=true&page=1&query=19-21063&searchField=ALL&tab_selection=all] ]
1) The issue: providing proof of discrimination
An employee, hired in 2005 as a Technician by the company ST Microelectronics, claimed to have been the victim of discrimination because of her sex. To this end, it seized the labor court on June 28, 2016.
Before the referral on the merits, the employee had initiated a first request before the summary proceedings of the labor court, in order to obtain the elements necessary to demonstrate this discrimination.
By an ordinance of October 21, 2015, it was thus ordered “the company to send to the employee, at the latest on December 23, 2015, the documents concerning ten non-anonymous men currently employed within the company and hired on June 22. 2006 (more or less six months) as a level IV workshop technician, step 1, coefficient 255 and containing the following information: the current position, the current coefficient, the current salary, the hiring coefficient, the date of 'hiring and hiring salary'.
The obligation to produce these elements was accompanied by a penalty.
The company had clearly not complied since on October 19, 2018, on the occasion of a new ordinance, the interim committee “ordered the company to pay the employee a provisional sum for the liquidation of the company. penalty "and" ordered the company to give it, no later than November 30, 2018, the same documents "and specified" that failing this, from December 1, 2018, the delivery of these documents will be accompanied by a final penalty per day of delay ”, while reserving the right to liquidate this penalty.
The employee intended to obtain the liquidation of the penalty payment.
2) Anonymization: an obstacle to admissible communication according to the Grenoble Court of Appeal
The Grenoble Court of Appeal did not grant the employee's request. Indeed, it retained that "the payslips of an employee included personal data so that the company was legitimate to seek the authorization of the employees".
According to her, “the employer had only been ordered to communicate the starting salary, the current position, the current coefficient, the current salary, the hiring coefficient, the date of hiring and the starting salary of ten non-anonymous men currently employed within the company and hired on June 22, 2016 (more or less six months) and in no case their pay slips ”.
Thus, it considered that the payslip containing personal information such as the age or the address of the employees, the company was justified in seeking the authorization of the employees concerned before proceeding to the communication of the elements requested by the employee. judge.
As a result, she refused to order the company to pay the employee a certain amount as a temporary penalty.
The employee then appealed to the Supreme Court.
3) The exercise of the right to evidence: a necessity which takes precedence for the Court of Cassation in application of Article 6, §1 of the Convention for the Protection of Human Rights and Fundamental Freedoms
The Court of Cassation does not adopt the same solution as that of the trial judges.
It is thus based on Article 6, §1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to quash the judgment under appeal.
Indeed, according to her, the Court of Appeal should have investigated "whether
the communication of non-anonymized information was not necessary for the exercise of the right to proof of the alleged discrimination and proportionate to the aim pursued ”.
The stake therefore lies in the exercise of the right to evidence.
In this case, it is possible to imagine that the success of the employee's claim depended to a large extent on the production of these elements, making it possible to measure her evolution in relation to that of employees placed in a situation comparable to her own. .
In general, providing proof of discrimination is not easy for employees, who often have little material information on the situation of other employees.
Referral to the summary judge on the basis of article 145 of the Code of Civil Procedure is often used to overcome this difficulty.
By this decision, the Court of Cassation therefore ensures both the effectiveness and the effectiveness of this remedy and thereby contributes to the facilitation of the demonstration of discrimination, if necessary.
You can read also:
Référé article 145 du CPC : une dessinatrice obtient les bulletins de paie de ses 8 collègues https://www.village-justice.com/articles/refere-probatoire-une-dessinatrice-obtient-les-bulletins-paie-collegues-pour,37837.html
. Discrimination et référé article 145 du CPC : une salariée obtient les bulletins de paie de ses 16 collèguhttps://www.village-justice.com/articles/discrimination-refere-article-145-cpc-une-salariee-obtient-les-bulletins-paie,32853.html
. Salariés, cadres : comment obtenir la communication des preuves détenues par votre employeur ? https://www.village-justice.com/articles/salaries-cadres-comment-obtenir-communication-des-preuves-detenues-par-votre,30295.html
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Claire Chardès M2 DPRT Paris Assas
CHHUM AVOCATS (Paris, Nantes, Lille)
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