France: Third parties’ personal data can be released as evidence

An employer may be compelled, as part of litigation, to disclose to employees payslips that identify colleagues. By Nana Botchorichvili of IDEA Avocats, Paris.

Can employees obtain from their employer payslips of their colleagues to prove the existence of unequal pay or treatment considering that such disclosure may infringe the privacy rights of these individuals? Could such disclosure be lawful under the GDPR? At the same time, how can the employees effectively prove that they were subject to discrimination in the absence of appropriate evidence? These were the questions on which France’s Supreme Court (Cour de Cassation) had to arbitrate in a ruling handed down on 8 March 2023(1).

Background to the case

The case relates to a female employee of a French financial investment company, Exane, who held the position of chief operating officer before being dismissed in 2019 on the grounds of being unfit for work. She considered that during her employment she had been subject to pay discrimination compared to certain male colleagues holding, or who had held, similar positions to hers. In anticipation of a lawsuit to challenge her dismissal, she filed a request to obtain from her former employer payslips of eight employees in accordance with article 145 of France’s Civil Procedure Code. Under French law, this provision allows a party in summary proceedings, before any trial, on the merits of a case, to request a judge to order the other party to disclose relevant information if there is a legitimate reason to believe that the withholding of such information, or establishing of certain facts with it, could affect the outcome of the dispute.

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