In a ruling handed down on June 1, the French Supreme Court (Cour de cassation) reminds us that the General Data Protection Regulation (GDPR) cannot be absolutely opposed to a request to transmit personal data. A look back at the limits of this right with this ruling.
Demonstrate the existence of unequal treatment
In this case, some thirty employees of a company, holding office as staff representatives and claiming to be discriminated against on the grounds of their trade union activities, applied to the summary proceedings panel of the industrial tribunal for information enabling their situation to be assessed in relation to that of other employees in a comparable situation.
In particular, they ordered the company to provide the surnames, first names, gender, date of birth, age and start date of each person hired on the same site in the same year, in the two preceding years or in the two following years. Among the documents requested were the pay slips for December of each year since the employees concerned were hired, and the last pay slip. The information requested related to people belonging to the same professional category, at the same or similar level of qualification/classification and coefficient.
Initially, the labour court and the Court of Appeal upheld the employees' request, ordering the company to disclose, under fine, documents and personal information relating to employees hired at the same time as the plaintiffs. However, the employer challenged this decision by lodging an appeal with the French Supreme Court. It considered that the transmission of personal data appearing on pay slips was not essential to the exercise of the right to prove the discrimination in question.
Easier access to pay slips
Taking the view that the right to protection of personal data is not absolute and must be assessed in relation to the employee's position in the company, the French Supreme Court rejected the employer's appeal. It ruled that the production of personal data may be justified if it is essential to the exercise of the right to evidence, and if the infringement is proportionate to the aim pursued.
Consequently, in its ruling of June 1, 2023, the French Supreme Court (Cour de cassation) confirms the reasoning of the industrial tribunal and the Court of Appeal. It confirms that the disclosure of the personal data of current and former employees was essential to the exercise of the right of proof and proportionate to the request of the plaintiff employees who claim to be victims of discrimination.
Access to payslips is now facilitated in the name of the right of evidence. The Court's decision may nevertheless seem surprising insofar as the RGPD prioritizes the protection of employees' personal data. A ruling of November 7, 2018, in which the social chamber of the Cour de cassation had considered that the communication by the employer of employees' payslips without their prior consent constituted an invasion of their privacy, had been issued along these lines.
⚖️Le right to personal data protection is not an absolute right https://t.co/qrEiKh5aVg- Cedef documentation (@DocCedef) October 12, 2023
The General Data Protection Regulation (GDPR) cannot be absolutely opposed to a request for disclosure of personal data...