In France, the way courts decide whether evidence may or may not admitted, has recently undergone significant changes, which are also likely to appear before the Monegasque courts and which require companies, employers and employees to adapt their conduct.
Until now, the traditional position of French courts has been to reject any evidence gathered in an unfair manner. Thus, neither an employee nor their employer could validly rely on the illicit recording of a telephone conversation or of a preliminary interview.
However, this principle, which prevents such practices, has been brought to a halt by a number of decisions issued by French Supreme court (Cour de cassation) on the basis of article 6 of the European Convention on Human Rights (which is also ratified and applicable in Monaco).
According to these rulings, a covert recording made during interviews, as well as images from a video surveillance not properly implemented by the employer, could be admissible.
Naturally, these rulings set limits to such admission, including the need to demonstrate that the production of the evidence is essential to the success of the claim and that the unfairness of the evidence is proportionate to the case.
A recent decision, for example, ruled that an employee's unlawful recording of a staff representative was inadmissible, since other evidence he presented in the debate already allowed to demonstrate the alleged harassment.
Similarly, when the production of video surveillance images that had not been validly installed by the employer was admitted, the court assessed the proportionality of the infringement to details of the case, in particular by analyzing the context of the disappearance of stocks and the fact that unsuccessful searches had been carried out beforehand by the employer.
To date, the decisions published in Monaco do not reveal any clear signs of the same evolution in the Principality, with the possible exception of a decision handed down by the Labour Court on 6 February 2024, which accepted the production of an evidence in particular on the grounds that it was "necessary for the defense of the party's interest ", a criterion similar (although less demanding) to the one referred to by the French Cour de cassation, which is the "indispensable" production.
However, the interest of this decision is more limited as, contrary to the French decision, it was not demonstrated by the Employer that the evidence had in fact been acquired unfairly.
This suggests that the Monegasque courts, and at the very least the Labour Court, will not be insensitive to this development.
Once the procedural safeguard of unfairness is lifted, it will require a big dose of optimism not to suspect that your colleague is recording you during an annual meeting or even a meeting prior to dismissal... To the point where it will soon become difficult to argue that one did not know they were being recorded on such occasions.
We can expect the courts to apply the proportionality test rigorously, so that admissibility will only be allowed in case of claims with high stakes and with no other means of proof to be considered.
We should also expect that the illicit capture of the image or voice of an employee or hierarchical superior will be brought before the criminal courts. The attitude of the latter may determine if the risk that this type of behaviour becomes more widespread in the future, it being specified that in France, certain decisions have held that the exercise of the rights of the defense constituted a "justifying fact" that precluded the pronouncement of a criminal penalty. This was the case of an employee who produced information in breach of the confidentiality of correspondence to the detriment of his former employer, and who was able to avoid any criminal responsability.
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