French Employment law : dismissal following an internal investigation (enquête internet) : the judge cannot base its decision solely on anonymous testimonies (c. cass. July 4th 2018, n ° 17-18241)

In case of dismissal following an internal investigation (enquête interne) in a company, the judge, seized of a dispute of his dismissal by an employee, can not base his decision solely or in a decisive way on anonymous testimonies.

To our knowledge, the decision of 4 July 2018 is unpublished in this area.

This judgment must be approved because it strengthens the rights of defense of employees in case of dismissal following an internal investigation

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1) The facts.

Mr. X  was hired on 1 March 2007 as an expert building buyer by SNCF mobilités.

On February 4 and 5, 2013, the employee and Mrs. Z ... approached SNCF's ethics department.

Following an internal investigation, the company notified the employee on 18 September 2013 of a suspension measure and summoned him to the Disciplinary Board.

He was fired on September 25, 2013 for fault.

The employee was reproached for making racist remarks about a colleague of Muslim religion and insulting remarks about his hierarchy.

2) In the case of an internal investigation, the judge cannot base his decision solely or decisively on anonymous testimony (temoignages anonymes)

On the approval of Article 6 §1 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in its judgment of 4 July 2018, the Court of Cassation states that "the judge can not base his decision solely on or decisively on anonymous testimonies ".

Article 6 §1 of the ECHR states that:

"Everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which shall decide either disputes over his civil rights and obligations or the merits of any criminal charge against him. The judgment must be made publicly, but access to the courtroom may be prohibited to the press and the public during all or part of the trial in the interest of morality, public order or public order. national security in a democratic society, where the interests of the juveniles or the protection of the privacy of the parties to the trial so require, or to the extent that the court deems it strictly necessary, when in special circumstances advertising would be of such a nature as to undermining the interests of justice ".

Article 6 §3 of the ECHR provides that

"Everyone charged with a criminal offense has the following rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) have adequate time and facilities for the preparation of his defense;

(c) to defend himself or to have the assistance of a defense counsel of his choice and, if he can not afford to pay a defense counsel, be able to be assisted free of charge by an ex officio justice demands it;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he can not understand or speak the language used at the hearing ".

The Court of Cassation breaks the judgment of the Court of Appeal of Rennes which considered that the procedure of dismissal is regular and the dismissal justified and after having retained that "the infringement of the rights of the defense based on the anonymous character of the testimonials collected by the Ethics Directorate is not justified to the extent that the employee had the opportunity to read and comment on them, relied decisively on the report of the management of the ethics.

The Court of Cassation breaks and annuls the judgment of the Rennes Court of Appeal of 17 March 2017 in that it dismissed the employee's claim for damages for dismissal without cause real and serious.

She refers the case to the Angers Court of Appeal.

3) Provision of the judgment of 4 July 2018.

In the event of termination of employment, if a company conducts an internal investigation, employees who testify must be identifiable.

Otherwise, the dismissal may be invalidated because the evidence may be removed from the proceedings by the judge because of their anonymity.

In any case, the judge cannot base his decision solely or decisively on anonymous testimony

This decision, which strengthens employees' rights of defense in the event of dismissal following an internal investigation, is to be welcomed.

Source: Court of Cassation

    c. cass. 4 July 2018, No. 17-18.241 (Mr. X c / establishment SNCF mobilities).
    Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and 14.

Frederic CHHUM
Avocat au barreau de Paris et membre du conseil de l’ordre de avocats de Paris
Selarl Frédéric CHHUM LAWYERS (Paris, Nantes)
e-mail: chhum@chhum-avocats.com
Website: www.chhum-avocats.com
Blog: www.chhum-avocats.fr

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