In a judgment of March 8th, 2023 (no. 21-12.492), the social chamber of the Court of Cassation ruled that an employee who considers herself to be the victim of unequal treatment may request, on the basis of article 145 of the Code of Civil Procedure, the communication of the payslips of his male colleagues occupying positions of a level comparable to his.
The social chamber rejects the appeal of the two companies.
She begins by recalling that:
“It follows from point (4) of the introduction to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and to the free movement of such data (GDPR), that the right to the protection of personal data is not an absolute right and must be considered in relation to its function in society and be weighed against other fundamental rights, in accordance with the principle of proportionality. It adds that this Regulation respects all fundamental rights and observes the freedoms and principles recognized by the Charter, enshrined in the Treaties, in particular the right to an effective remedy and to access to an impartial tribunal”.
“According to article 145 of the Code of Civil Procedure, if there is a legitimate reason to preserve or establish before any trial the proof of facts on which the solution of a dispute could depend, the legally admissible investigative measures may be ordered at the request of any interested party”.
“It also follows from Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 9 of the Civil Code and 9 of the Code of Civil Procedure, that the right to evidence can justify the production of elements infringing personal life on the condition that this production is essential to the exercise of this right and that the infringement is proportionate to the aim pursued”.
The High Court then sets out the method of reasoning that must be followed by judges seized of a request for disclosure of documents on the basis of Article 145 of the Code of Civil Procedure:
"First, to determine whether this communication is not necessary for the exercise of the right to proof of the alleged unequal treatment and proportionate to the aim pursued and whether there is thus a legitimate reason to retain or establish before any trial the proof of facts on which the solution of a dispute could depend”;
"Then, if the elements whose communication is requested are likely to affect the personal life of other employees, to verify which measures are essential for the exercise of the right to evidence and proportionate to the aim pursued, if necessary in confining the perimeter of the production of requested parts”.
So in this case:
“The Court of Appeal noted that, in order to present evidence leading to the presumption of the existence of the alleged wage inequality between her and some of her male colleagues, the employee was well justified in obtaining the communication of the pay slips of eight other employees occupying positions of a level comparable to his in managerial, commercial or market functions, with concealment of personal data with the exception of surnames and first names, conventional classification, detailed monthly remuneration and gross remuneration cumulative total per calendar year.
In the light of these findings and statements, the Court of Appeal pointed out that this communication of elements affecting the personal life of other employees was essential to the exercise of the right to evidence and proportionate to the aim pursued. , or the defense of the employee's legitimate interest in equal treatment between men and women in matters of employment and work.
The plea is therefore unfounded”.
To read the full brief, click the link below.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Mathilde Fruton Létard élève avocate EFB Paris
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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