OD FLASH | The communication of pay slips in the context of an action for wage discrimination must not infringe the rights of third parties recognized by the GDPR

Cass. Soc., April 9, 2025, no. 22-23.639

The French Supreme Court recently guaranteed the effectiveness of the application of the GDPR by specifying the terms under which a company may be required, in the context of an action for wage discrimination, to produce items containing personal data of other employees who are third parties to the dispute.

In this case, a class action, based on an alleged gender discrimination, was initiated against the company, with eight female employees concerned.

The pre-trial judge ordered the company to provide the plaintiffs with a list of the names of all employees hired in the same classification as the eight employees concerned, within a two-year range of their hiring year. This list was to include dates of birth, gender, level of qualification, dates of advancement to higher classification levels and classification levels, gross monthly salary for each year and remuneration components, as well as December pay slips since their hiring.

The company challenged the pre-trial judge’s decision, even before the dispute was examined on its merits by the judicial court, but its appeal was declared inadmissible by the Court of Appeal, on the grounds that the communication of pay slips in relation to the production of a panel falls within the scope of the right to evidence and is therefore subject to examination by the trial judge (Paris Court of Appeal, Pole 6, Oct. 13, 2022, no. 22/00797).

The company then filed an appeal before the French Supreme Court. 

The Court overturned the decision of the Court of Appeal and made the following clarifications

• Firstly, the French Supreme Court clarifies that an appeal against a decision relating to the forced communication of documents containing personal data of third parties falling within the scope of the GDPR is immediately admissible.

• The Court went on to point out that it is up to the court hearing such a request to determine whether disclosure of the documents is necessary for the exercise of the right to proof of the alleged discrimination and proportionate to the aim pursued (i), and whether there is a legitimate reason for preserving or establishing, prior to any legal proceedings, proof of facts on which the outcome of a dispute may depend (ii). Accordingly, if the information requested is likely to affect the private lives of other employees, the French Supreme Court invites the judges to verify that the measures are essential to the exercise of the right to evidence and proportionate to the aim pursued, specifying that it is then possible to restrict the infringement thus caused to the employee’s private lives.

• Lastly, the French Supreme Court reminded that trial judges must uphold the principle of personal data minimization by ordering the parties to use such data, contained in the disclosed documents, only for the purposes of the discrimination claim.

The French Supreme Court thus found in favor of the employer: the Court of Appeal should have examined the company’s objection, assessed whether the disclosure of documents containing other employees’ personal data was essential to the claimants’ right to evidence, and ensured in all cases that personal data was minimized in the process.