Internal Investigations: Detailing the admissibility of such evidence before French courts

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The French Supreme Civil Court (Cour de cassation) recently provided further details on the conditions for admissibility of an internal investigation in the context of an employment dispute.

Case law has repeatedly defined the principles governing the admissibility of an internal investigation and its conclusions before the courts. The French Cour de cassation recently provided further details, while reaffirming that internal investigations are part of an employer's management power, regarding who must conduct these investigations, in light of the principles of objectivity, impartiality and confidentiality.

Principle of freedom of evidence in labour matters and authority of judges 

The French Cour de cassation recalls that internal investigations are free of any formalism, by specifying that investigation deficiencies do not per se exclude such investigation reports from judicial debates, provided that no illicit investigations have been carried out. It is up to the judges to assess the probative value of the report with regard to all the other evidence produced by the parties (Cass. soc., June 29, 2022, no. 21-11.437).

The French Cour de cassation considers that if the investigation report does not specify the duration of the interview of the relevant employee nor the applicable rest periods, or that only the two individual employees who had complained of inappropriate behaviour had been heard in a joint hearing, should not exclude the admissibility of the investigation report. Indeed, the investigation report must be challenged with other evidence brought forth, in particular employee interview reports and employee testimonies.

No obligation to involve employee representatives

Apart from warning prerogatives granted to employees' representatives by law, the French Cour de cassation specifies that an internal investigation for harassment can be conducted by Human Resources Departments, without necessarily involving employees' representatives (Cass. soc., June 1, 2022, no. 20-22.058).

More generally, the French Cour de cassation refused to exclude from debates an investigation report that has yet to be communicated to the employees' representatives (Cass. soc., June 29, 2022, no. 21-11.437, aforementioned).

Principle of impartiality and loyalty: choice of the investigator

The requirement of impartiality of internal investigations means that the person conducting the investigation is not involved and does not have direct relations with any employee targeted by such investigation. In this respect, the French Cour de cassation recently recognized a breach of the employer's duty of care who entrusted an internal investigation to the direct superior of the employee targeted by the investigation, with whom he had a known disagreement (Cass. soc., July 6, 2022, no. 21-13.631). In this case, it was considered that the accusation of the employee had been hurried and humiliating, without sufficient care or precaution.

Principle of objectivity and proportionality: the scope of employee's interviews

The French Cour de cassation has consistently held that an employer is free to only interview a portion of employees potentially affected by the facts under investigation. The Court previously ruled that the employer could choose to hear from only a portion of the employees, those being potential victims of the alleged harasser, with the obligation of impartiality not necessarily being called into question (Cass. soc., January 8, 2020, no. 18-20.151).

The French Cour de cassation affirmed this principle recently by considering that investigation reports may not be excluded from debates on the grounds that only eight employees out of the twenty in the department had been interviewed (Cass. soc., June 1, 2022, no. 20-22.058, aforementioned).

The adversarial principle does not apply to the investigation

The French Cour de cassation has previously indicated that the fact that the accused employee was not informed of the investigation, nor heard in the course of it, did not constitute an unfair process (Cass. soc., 17 March 2021, no. 18-25.597).

It recently specified that respect of the rights of defence and the adversarial principle do not require that the accused employee has access to the investigation file and to any documents collected, that they be confronted with the colleagues who involved him nor that he be heard, as long as the employer's decision or the elements on which the decision is based can be subsequently discussed before the Court (Cass. soc.,June 29, 2022, no. 20-22.220).

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