When a dispute arises between an employee and his employer before the industrial tribunal, the testimony of colleagues can play a decisive role. But sometimes, when asked to testify, an employee is reluctant to come forward openly, fearing reprisals. This raises an essential question for small and medium-sized companies: can an employee testify anonymously in industrial tribunal proceedings?
Testifying in court: a regulated and essential act in labor disputes
In employment law, any employee can be called upon to testify in a dispute between a colleague and the employer. This testimony generally takes the form of a written attestation (Cerfa form n°11527*03), which must be signed and accompanied by a copy of the witness’s identity document.
The purpose of this formalism is to guarantee the reliability of the testimony and to allow the opposing party to discuss its scope. Pure anonymity is therefore, in principle, incompatible with this type of procedure: unsigned, unidentified testimony alone cannot constitute evidence.
An opening in case law: anonymized testimony can be taken into account
However, in a recent ruling (Cass. soc., April 19, 2023, no. 21-20.308), the French Supreme Court qualified this principle. It ruled that anonymous testimony could be taken into account by judges on two conditions: that the real identity of the witness be known to the employer, and that other elements corroborate the facts reported.
In other words, if an employer is informed internally of the identity of the witness, even if this is not revealed in the file submitted to the judge, and the testimony is supported by additional evidence (e-mails, written exchanges, other attestations), then judges can take this into account in their overall assessment of the dispute.
Practical consequences for small and medium-sized businesses
In an SME, where relationships are often closer and teams smaller, employees may be particularly reluctant to testify against their employer. This fear is understandable, but the law offers certain protections.
An employee cannot be punished, dismissed or discriminated against for giving evidence in a labour dispute. Such a measure would be considered an infringement of the fundamental freedom to testify, and therefore liable to be overturned by the judge. Testimony, even if perceived as unfavorable by the employer, is protected by the principle of loyalty in the administration of evidence.
A lawyer’s advice: anticipate conflicts and secure testimonials
For employers, managing internal testimonials requires both caution and rigor. When an employee agrees to testify, the company must ensure that his or her rights are strictly respected and that there is no risk of pressure or reprisals. It is essential to remind all employees that testifying, even if unfavorable, is part of the exercise of the right to defense.
In the event of a potential conflict, it is advisable to: – seek legal advice when collecting testimonials – keep a clear record of the origin and form of testimonials – avoid any action that could be interpreted as a reaction to a testimonial
Finally, if an employee wishes to testify but fears internal consequences, it may be useful to consider mediation or support from the CSE or a lawyer to reassure him of his rights and the protection he enjoys.
Legal references
Article 202 of the Code of Civil Procedure
Court of Cassation ruling, Social Division, April 19, 2023, no. 21-20.308
CERFA form no. 11527*03: Model witness statement
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