French labour law - Anonymized testimonies: admissibility, before the industrial tribunal, if they are corroborated by other elements

It follows from article 6, § 1 and § 3, of the Convention for the Protection of Human Rights and Fundamental Freedoms guaranteeing the right to a fair trial, that if the judge cannot base his decision solely or in a decisive on anonymous testimonies, it can nevertheless take into consideration anonymized testimonies, that is to say made anonymous a posteriori in order to protect their authors but whose identity is nevertheless known by the employer, when these are corroborated by other elements making it possible to analyze their credibility and relevance.

The judgment must therefore be censored which, in order to annul the disciplinary sanction pronounced against an employee, retains that the "anonymous attestation" of one of his colleagues and the report of his interview with a member of the resource management documents produced by the employer, are without probative value on the grounds that it is impossible for the accused person to defend himself against anonymous accusations, whereas the Court of Appeal had found that these two documents were not the only ones produced by the employer to characterize the fault of the employee and that it was up to him to assess its value and scope.

This is affirmed by the Court of Cassation in a judgment of April 19, 2023 (n°21-20.308).

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https://consultation.avocat.fr/blog/frederic-chhum/article-47976-french-employment-law-anonymized-testimonies-admissibility-before-the-industrial-tribunal-if-they-are-corroborated-by-other-elements.html

Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

Irene Gaston

CHHUM AVOCATS (Paris, Nantes, Lille)

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