French court revises evidence rules

The French Court of Cassation's Plenary Assembly, in a December 2023 ruling, changed long-standing rules about evidence that was obtained without the person's knowledge. Previously, such evidence was not allowed in court due to concerns about fairness. Now, it can be admitted if it is essential for the right to evidence and if its use doesn’t unfairly affect other rights.

CSE meetings can be recorded

The French Labor Code allows the recording of CSE (Comité Social et Économique) meetings, with the minutes prepared by the committee's secretary. Employers and employee representatives can use stenography or recording devices, but employers may refuse if they claim confidentiality. The committee has no similar right to oppose recordings if initiated by the employer.

Purpose of recordings is unclear

The law does not clearly define the purpose for which recordings of CSE meetings can be used. This ambiguity led to a 2026 ruling by the Court of Cassation, which addressed a dispute over the content of meeting minutes. The employer had started recording meetings in 2023, claiming they needed to verify the accuracy of transcriptions and gather evidence.

Court limits recording purposes

A judge ruled against the employer’s continued recordings, and the social chamber of the Court of Cassation upheld this decision. It interpreted the law to mean that recordings can only be used for preparing minutes, which is the exclusive responsibility of the secretary. The employer’s right to record was tied to this specific purpose and could not be used for other reasons.

Data protection law implications

Recording discussions involving personal data of employee representatives requires a legal basis under the GDPR. The employer, who sought to use recordings for purposes unrelated to minutes, had no valid legal justification. This lack of a legal basis was enough to declare the recordings as a violation of data protection laws.

Employers have limited recourse

Although the court ruled against preemptive evidence gathering by recording meetings, employers are not without options. They can request corrections to minutes before they are finalized or have their concerns noted in future meetings. The ruling applies equally to committee members, as recordings are only meant to support the preparation of minutes, not to monitor participants.