OD FLASH | Admissibility of unfair evidence in proceedings for recognition of an accident at work and inexcusable fault of the employer

Cass. Soc., 6 juin 2024, n° 22-11.736

In a decision of 6 June 2024, the Court of Cassation accepted the admissibility of a recording made by an employee without the employer’s knowledge in the context of proceedings for the recognition of an accident at work and the existence of inexcusable fault on the part of the employer.

In this case, the employee declared that he had suffered an accident at work following a physical altercation at his workplace with the company’s manager. After the accident had been reported and covered by the primary health insurance fund under the legislation on occupational risks, the employer referred the matter to the TASS in order to render the decision unenforceable. The employee also brought an action before the TASS for “inexcusable fault on the part of the employer”. The two cases were joined.

The TASS and then the Court of Appeal, basing their decision on an audio recording of the altercation made without the employer’s knowledge, rejected the employer’s claim that the decision could not be set aside and ruled that the employer was guilty of inexcusable fault.

In its appeal to the French Supreme Court, the employer argued that the evidence was unfair and not essential (due to the presence of witnesses) and sought to have the decisions overturned.

The Court of Cassation dismissed the employer’s appeal and accepted the admissibility of the illegal recording made by the employee, citing the judgment of the Court of Cassation of 22 December 2023.

According to the court, “if the use of the recording of the comments, made without the author’s knowledge, undermined the fairness of the proceedings as a whole, balancing the right to privacy of the director of the employer company against the victim’s right to evidence, the Court of Appeal was able to conclude that the production of this evidence was essential for the victim to exercise her right to have both the occupational nature of the accident resulting from this argument and the inexcusable fault of her employer in causing it recognised, and that the interference in the private life of the director of the employer company was strictly proportionate to the objective of establishing the reality of the violence suffered by her and denied by the employer”.

This judgment follows on from the judgment delivered by the full Court on 22 December 2023 and provides another example of the indispensability of the element of proof. In this case, the Court upheld the reasoning of the trial judge, who had held that the recording was indispensable where:

– the employees present during the altercation were “subordinate” to the employer;

– the customer present had an “economic link” with the manager, so that “the victim could legitimately doubt whether she could rely on her testimony”.