[ADMISSIBILITY OF UNFAIR OR UNLAWFUL EVIDENCE]

[CASE LAW - LAW OF EVIDENCE]

🚨 Evidence obtained by an unlawful or unfair process in industrial tribunal proceedings may be deemed admissible in certain very limited cases.

⚖️ In the decision of 17 January 2024, the Social Division of the Court of Cassation recalls that: "Illegality or unfairness in obtaining or producing evidence does not necessarily mean that it should be excluded from the proceedings" (Soc. 17 Jan. 2024, 22-17.474).

⚠  In principle, evidence is free in labour law matters and may be adduced by any means (Soc. 27 February 2201, no. 98-44.666; Soc. 8 March 2023, no. 21-12.492, no. 21-17.802, no. 20-21.848, no. 21-20.798).

However, freedom of evidence is not without limits.

It is subject to compliance with the principle of lawfulness and fairness in the administration of evidence (L.1121-1 of the Labour Code; Ass. plén. 7 January 2011, no. 09-14.316).

It must also meet the conditions of necessity and proportionality (Cass. soc., 17 Jan. 2024, no. 22-17.474).

A balance must be struck between these principles and conflicting rights, such as the right to a defence, respect for a fair trial and respect for private and family life (Article 6(1), Article 6(3) and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms).

✅ The parties to the dispute must check with a legal professional the conditions for the admissibility of evidence.

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