The labour judge can take into consideration anonymous testimony corroborated by other elements of proof

Cass. Soc., April 19 2023 n°21-20.308, Published in the bulletin

Although the judge cannot base his decision solely – or in a decisive manner – on anonymous testimonies, he may nevertheless take into consideration anonymized testimonies provided they are corroborated by other elements that allow for an analysis of their credibility and relevance.

A employee was subjected to a disciplinary suspension. He brought an action before the Labour Court to have this sanction annulled.

The Court of Appeal annulled the disciplinary suspension, stating that the testimoy of an employee who had agreed to testify anonymously, fearing retaliation, and the minutes of his interview with the HR department have no probative value as it would be impossible for the accused person to defend himself against anonymous accusations.

The Court of Cassation overturned the decision of the Court of Appeal, and indicated that while the judge cannot base his decision solely – or in a decisive manner – on anonymous testimonies, he may nevertheless take into consideration anonymized testimonies (i.e., testimonies that have been rendered anonymous in order to protect their authors, but whose identity is nevertheless known by the employer) provided they are corroborated by other elements that allow for an analysis of their credibility and relevance.

However, in this case, the Court of Appeal had found that the testominies were not the only proof submitted by the Employer to demonstrate the employee’s misconduct.

Therefore :

• Regarding anonymous testimonies, given by a witness whose identity remains unknown :

The judge cannot base his decision on a single anonymous testimony or, in a decisive manner, on several anonymous testimonies (Cass. soc. July 4, 2018, n°17-18.241 and Cass. soc. September 23, 2003, n°01-43.595)

• Regarding anonymized testimonies (i.e., testimonies that have been rendered anonymous in order to protect their authors, but whose identity is nevertheless known by the employer (which implies that the Employer can demonstrate his knowledge of witness’s identity) :

-the judge cannot base his decision solely on one or more anonymized testimonies,

-however, the judge may take into consideration such anonymized testimony provided they are corroborated by other evidence that allows for an analysis of its credibility and relevance. If the decision of the Court of Cassation mentions “notably other non-anonymous testimonies“, other elements of proof such as emails may be considered to corroborate the anonymized testimonies.