OD FLASH | The Social and Economic Council can produce anonymized testimonies before the judge to demonstrate the existence of a serious risk.

French Supreme Court, Social Division, December 11, 2024 – no. 23-15.154

In this case, an employer, challenged in court the Social and Economic Council decision to use the services of an expert because of a serious risk. In the course of this dispute, the Social and Economic Council produced anonymized employee testimonies to establish the existence of a serious risk. The company referred the matter to the president of the judicial court for an accelerated procedure on the merits, in order to have the said testimonies excluded from the debates. Its requests were granted by the president of the judicial court, who issued an order declaring the disputed documents inadmissible.

The Social and Economic Council then lodged an appeal against this order.

In this case, the testimonies demonstrated a deterioration in working conditions, illustrated by an overload of work, inadequate professional resources and constant managerial pressure in a climate of tension. The Social and Economic Council argued that the principle of adversarial proceedings did not preclude the production of anonymized statements where there was a risk of reprisals against witnesses, and that the data used to identify the persons who testified should be reserved for the judge, provided that these statements were corroborated by other evidence. The Social and Economic Council took the view that the order contravened articles 15 and 16 of the French Code of Civil Procedure, considering that these elements should be declared inadmissible, insofar as they had not been the subject of an adversarial debate by the employer.

The French Supreme Court (Cour de cassation) held, in the light of articles 6 §1 and 3 of the ECHR, which guarantee the right to a fair trial, that the judge cannot base his decision solely or decisively on anonymous testimony. However, he may take account of anonymous testimony, i.e. testimony which has been rendered anonymous in order to protect its authors, but whose identity is nevertheless known to the party giving the testimony, provided that the testimony is corroborated by other elements attesting to its credibility and relevance.

Thus, it was up to the president of the judicial court to examine the value and scope of the testimonies and other documents that he had noted had been produced by the Social and Economic Council.

This ruling thus provides an important illustration of the conditions under which the Social and Economic Council can use anonymized testimonials as evidence. Furthermore, it transposes the system of anonymized testimonies, which has already been used in litigation between an employer and its employees.

For instance, this was the case in a decision handed down by the Lyon Court of Appeal on October 9, 2024 (no. 22/01937), and by the Social Division of the Court of Cassation on April 19, 2023 (no. 21-20. 310), in which these courts ruled identically that it was possible for the judge to take into consideration testimonies rendered anonymous to protect their authors, but whose identity is nevertheless known by the employer, when they are corroborated by other elements enabling their credibility and relevance to be analyzed.