In the event of a legal problem or dispute with an employee, it is always a good idea to call in a private detective. He or she will have a number of ways of resolving the problem effectively and will be able to gather evidence that will be admissible in court.
Evidence can be gathered in a variety of ways. If it is fair, legal and proportionate, it can be used before the competent courts.
However, when we think of a private detective, we automatically think of a stalker. In fact, surveillance is an effective form of evidence that is needed to prove many situations.
But surveillance is highly restricted by case law, particularly in relations between employers and employees.
Since 2002, the French Supreme Court (Cour de cassation) has automatically prohibited the use of tailing, considering it to be disproportionate in all cases: ‘A tail organised by the employer to control and monitor the activity of an employee constitutes an unlawful means of evidence where it necessarily involves an invasion of the employee’s privacy, which cannot be justified, in view of its disproportionate nature, by the legitimate interests of the employer’.
However, the Conseil d’Etat will not follow this case law in terms of the relationship between employer and public servant. As a result, private investigators will be freer to intervene when gathering evidence for a public service or administration.
However, the procedures are regulated.
So what scope is there for private detective involvement in an investigation on behalf of a public employer?
The public employer will be in a delicate position, caught between its obligation to prove a civil servant’s failings and the obligation of loyalty that exists between an employer and an employee in both the public and private sectors. It is by reconciling these two obligations that the conditional acceptance of employee shadowing under public law is achieved.
The obligations of the public employer
To ensure the smooth running of the public administration, the employer will be obliged to ensure that employees comply with their obligations, in particular the prohibition on combining jobs without the prior agreement of their administration. The purpose of this prohibition is to maintain the impartiality of the public service and to ensure that civil servants and contract staff act in the general interest of the public service.
The obligation to ensure the proper functioning of the administration
In the event of a dispute, the administrative judge explicitly requires the public employer to establish proof of the facts on which it bases a sanction.
A private investigator will therefore enable the public employer to meet its obligations by providing the evidence needed to sanction an employee and ultimately to ensure the smooth running of the public service. This action will put an end to the disturbances and restore normal operation of the service in the general interest.
Compliance with the principle of loyalty
The principle of ‘proof by any means’ is limited by the obligation of loyalty between employer and employee. ‘However, all public employers are bound by an obligation of loyalty towards their employees; consequently, they may not base a disciplinary sanction against one of their employees on documents obtained in breach of this obligation’.
This is the same duty of loyalty that exists in civil law, governing relations between employees and private employers. This same obligation led the Cour de cassation to automatically prohibit any evidence established by shadowing. At this point, it might be thought that the Conseil d’Etat would follow the case law of the Cour de cassation and refuse to accept evidence by shadowing as unfair. However, this is not the position taken by the Conseil d’Etat and it is therefore proposing a new definition of loyalty in public law that no longer automatically excludes evidence established by shadowing.
The possibilities for intervention by private investigators
Since 2014, in public law, the private investigator’s report must be considered by judges as evidence in the same way as other evidence. It is up to the judges of first and second instance to decide whether the evidence complies with the principle of loyalty.
The Conseil d’Etat sets out a number of points to help clarify what constitutes fair surveillance.
Firstly, there must be a suspicion on the part of the administration that the employee is engaged in a gainful activity in addition to his work as a civil servant. This suspicion is necessary to ensure that the local authority is acting in good faith at the start of the investigation.
Secondly, the investigator must respect the privacy of the employee’s home. Thus, the private detective’s report will be better received by the courts if it is limited to following public officials during the day and in public places.
In more recent case law, there are two temporal conditions: the period of surveillance must be limited (6 days in this case) and the hours must correspond to working hours.
These two temporal conditions contribute to the fairness of the evidence. They justify the fact that the employer did not have his employee monitored for 6 months simply out of a desire to push her into misconduct.
When a public employer makes a request, based on genuine suspicions, the private investigator’s scope for action will be extended by case law, and the private investigator will know the precise limits he must not exceed.
This expansion of possibilities for action is beneficial for public employers and private investigators, who will be able to act more quickly and effectively depending on the situation. The fact that the Conseil d’Etat does not limit itself to simply refusing evidence by surveillance or shadowing means that it can be adapted on a case-by-case basis, ensuring that the public service functions more effectively while reconciling the gathering of evidence with the fundamental freedoms of civil servants and public officials.
