Actance Tribune
What's NEW under French Employment Law?
N° 24 – February 5, 2024
Clandestine recording now admitted before French civil courts as means of proof
Until recently, the French civil judge considered that the production of evidence obtained unfairly to be inadmissible, that is to say proof collected without the knowledge of a person or via a manoeuvre or stratagem (Cour de Cassation – social division, January 7, 2011, number 09-14.667). Only the French criminal judge accepted it. Thus, in particular, the use of evidence obtained unfairly was not admitted in the context of a dispute relating to the employment relationship between the employer and employee.
Since a decision of December 22, 2023 by the French civil supreme Court the production of unfair evidence now seems to be accepted by the French civil judge (Cour de Cassation – social division, December 22, 2023, number 20-20.648).
In this case, an employee was dismissed for serious misconduct for having refused to provide their employer with a record of their commercial activity. To justify this dismissal, the employer provided the judges with transcriptions of audio recordings made during interviews without the employee’s knowledge.
In this case, the principle of the admissibility of such unfair evidence was established under two conditions:
- First, that such production be essential to the exercise of the right to proof, namely that it must be the only proof possible to establish the truth and
- Second, that the invasion be strictly proportionate to the aim.
From now on, it shall be therefore up to the French civil judge to verify the proportionality between the rights in balance, in this case on the one hand the right of proof and the protection of the interests of the employer and on the other hand the rights and freedoms of the employee (right to respect for their private life).
Applying these criteria, the production by the employee of a clandestine recording of their interview with staff representatives, with a view to proving the moral harassment to which they felt they were exposed, was considered inadmissible on the grounds that this recording was not essential to the exercise of the right to proof and that other evidence existed (Cour de Cassation – social division, January 17, 2024, number 22-17.474).
This new case law shall undoubtedly have significant consequences on future disputes between employers and their employees.
Note:
The admissibility of evidence collected without a person’s knowledge or using a manoeuvre or stratagem is now possible, under certain conditions, for both the employer and the employee.
It is recommended that the employer be even more careful during their oral exchanges (interviews in particular) because their remarks may be recorded by the employee with a view to litigation.
Temporary adaptations to French labour law in the context of the Paris 2024 Olympic and Paralympic Games
France will host the Olympic Games from July 26 to August 11, 2024 and the Paralympic Games from August 28 to September 8, 2024.
In preparation, several exceptional measures have been planned to ensure the safety, protection of rights and effective organisation of these events.
Specifically concerning French labour law, existing legal measures have been adapted to support companies and employees during this time and to allow workers to adapt to the specific requirements of the event, mainly regarding working hours.
Under French law, employees must have at least one day of rest per week, in principle on Sundays (art. L. 3132-1 et seq. of the French Labour Code).
However, a new temporary exemption from Sunday rest has been introduced for the period from June 15 to September 30, 2024 (law no. 2023-380 of May 19, 2023):
- In the municipalities of the competition sites, as well as in neighbouring or nearby municipalities, the prefect may authorise the opening of retail establishments providing goods or services on Sundays;
- Weekly rest for employees of these establishments may be granted on a rotation basis and on another day rather than Sunday;
- This exemption from Sunday rest shall be made on the voluntary basis of employees who must provide written agreement to their employers. The employee may reconsider their decision to work on Sunday at any time, provided that they notify their employer in writing 10 full days ahead of time.
An exemption from the rules governing weekly rest for employees was also introduced for the period from July 18 to August 14, 2024 for establishments facing an extraordinary increase in work (decree no. 2023-1078 of November 23, 2023; Questions/Answers from the French Ministry of Labour of November 30, 2023):
- The additional workload shall be:
- Either for the purposes of recording, transmitting, broadcasting and retransmitting competitions organised as part of the Olympic Games;
- Or necessary to ensure activities relating to the organisation of events and the operation of sites linked to the organisation and operation of the Olympic Games (listed in a forthcoming decree);
- These employers shall be allowed to suspend the weekly rest of their employees without administrative authorisation twice a month at most, and there must be no more than six of these suspensions in the year. The French labour inspector must however, be informed;
- Employees shall be entitled to compensatory rest of a duration equal to the duration of the suspended rest, which must be allowed immediately after the derogation period.
Moreover, purchase vouchers and gifts in kind awarded by the works councils or employers for the 2024 Olympic Games shall be exempt from social security contributions, under certain conditions (URSSAF Information of October 30, 2023, i.e. the French organisation for the recovery of social security contributions).
Finally, to help companies recruiting seconded employees as part of the Paris 2024 Olympics, and particularly preparations, on December 18, 2023 the French Ministry of Labour published a guide for organisers of major sporting events in France, which is also aimed at service providers operating in this context (only in French).
Note:
France has taken some exceptional measures in labour law for the organisation of the 2024 Olympic and Paralympic Games.
The implementation of these exceptional measures does not mean employers are exempt from ensuring compliance with the rules of current labour law and worker protection.
The labour inspectorate may penalise failures to implement these exemptions and shall verify compliance with certain obligations, particularly concerning employment and working conditions, health and safety of workers, prevention of illegal work and irregular secondment.
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