In a groundbreaking judgement, the Court of Cassation (Cass. soc. of 14/02/2024 no. 22-23.073 F-B, B. c/ Sté Pharmacie mahoraise) has shown that evidence obtained through unlawful video surveillance may be admissible in court under certain conditions.
In principle, it should be noted that in civil proceedings, the unlawfulness of obtaining or presenting evidence does not necessarily lead to it being excluded from the proceedings. The right to evidence can justify the production of evidence that violates other rights, provided that this production is essential for the exercise of the right and the interference is proportionate to the objective pursued. In the case of unlawful evidence, the judge must first scrutinise the legitimacy of the monitoring carried out by the employer and examine whether there were specific reasons for the monitoring and its scope.
This principle was again applied in a case in which a pharmacy resorted to video surveillance due to unexplained loss of goods. Although the surveillance was initially classed as unlawful as the employees had not been informed in advance, the evidence could ultimately be used.
When is such evidence admissible?
– Indispensable for the right to evidence: The evidence must be indispensable to assert a right.
– Reasonable timeframe: Surveillance should be limited in time and restricted to what is necessary.
– Balanced consideration: A careful balance must be struck between the data subject’s right to privacy and the company’s interest.
An exemplary case:
In a specific case, the investigation of irregularities in a pharmacy’s inventory led to the use of video recordings that revealed serious misconduct by an employee. The court considered the use of these recordings to be permissible as they were decisive in proving the misconduct and no other means were available that would have been less intrusive to the employee’s privacy.
Our expertise:
As specialist employment law solicitors, we understand the intricacies and challenges of using evidence obtained in legal grey areas. Our goal is to effectively protect your organisation while safeguarding the rights of all parties involved. If you find yourself in a situation where you are unsure how to deal with potentially unlawfully obtained evidence, we are here to support you with our expertise and experience.
Contact us for a consultation and we will help you develop the best strategies for your case.