A legal dispute between an employer and two employees regarding a violation of medical confidentiality. The Court of Cassation ruled in their favor
To obtain a salary increase, some are willing to cross the rules. Two employees were not afraid to overcome legal barriers, which resulted in their dismissal for serious misconduct, before the courts ruled otherwise. The story takes place in an EHPAD in Avignon. A woman and a man, respectively hired in 2000 and 2010, occupy logistics service agent positions within the establishment.
The dispute began on May 2, 2018, when the two employees approached the Industrial Tribunal with a clear request. They demand the reclassification of their respective positions as “nursing assistant” because they are frequently required to provide medical care. Three months later, they received a warning from their employer. The disciplinary sanction is justified by the fact that the employees presented protected health data to the courts when making their request. Proof that the employer does not accept.
The sanction is combined with a formal notice to withdraw these elements from the procedure. The two employees refused and were dismissed for serious misconduct on February 5, 2019. Xavier Berjot, labor law lawyer, explains to JDN how judges reason in such a case. “Firstly: is the production of the part justified? Yes, as long as it is essential to the exercise of the rights of the defense and proportionate to the aim pursued. Secondly, if the production is justified, the employee’s refusal to remove the part cannot, in itself, constitute grounds for dismissal.”
The two employees again appealed to the Industrial Tribunal, this time to contest their dismissal. Good news for them, the Nîmes Court of Appeal judges their dismissal without real and serious cause, on September 10, 2024.
If the appeal court considers that the right to proof allows the production of documents covered by medical confidentiality, this is not the case for the employer who files an appeal in cassation. Would anonymization of the documents have made it possible to avoid this dispute? This is far from being an absolute yes for Xavier Berjot, even if the lawyer recognizes that she could have a role.
“Anonymization does not offer absolute immunity. Two cumulative conditions remain necessary: the production must be essential to the exercise of the rights of the defense and proportionate to the aim pursued. Anonymization must also be effective: it is not enough to cross out the names, it is also necessary to check that no other element allows the patients to be identified by cross-checking. Here, the employees had taken care to cross out the names and the name of the nursing home did not appear on the extracts, which won (in my opinion) the conviction of the judges”, he explains.
The Court of Cassation rejected the employer’s appeal on April 1, 2026. It recalls that an employee can only produce documents covered by medical confidentiality in court if this production is essential to the exercise of the rights of the defense and proportionate to the aim pursued. “The indispensability is a matter for the sovereign assessment of the trial judges. The Court of Cassation here holds that the certificates produced were contested by the employer, one of which came from a colleague also in dispute with him, so that the nursing diary constituted the only indisputable piece of evidence of the tasks actually accomplished. Conversely, if concordant and uncontested certificates are sufficient to establish the disputed fact, the production of a protected document will be deemed disproportionate”, concludes Xavier Berjot.
Despite appearances and the employer’s reproach, these two employees did not violate medical confidentiality but provided proof proportionate to their initial objective. This new decision from the Court of Cassation is part of the protection of evidence in workplace conflicts.
