FRANCE Law and Practice Contributed by: Eva Kopelman, Ségolène Cox and Alexis Alié-Sandevoir, Axipiter
3.10 Recording Recording of interviews is possible in France, but only with the consent of all participants. It is not standard practice in internal HR investigations, as it may dis - courage interviewees from speaking freely. If an interview is recorded, a transcript may be pro - duced. Its use and distribution must be strictly con - trolled in accordance with confidentiality obligations. Typically, transcripts are shared only with the investi - gators and, if necessary, the legal counsel involved in the investigation. To ensure that interviews are not recorded without authorisation, including in remote settings (eg, via Teams or Zoom), it is recommended to clearly inform all participants at the start of the interview that recording is prohibited and to reiterate the confidentiality require - ments. Employers should also consider disabling any recording features on the digital platforms used. 3.11 Other Fact-Finding In principle, evidence must be collected in a law - ful and fair manner. This may include, for example, emails, written statements, recordings, or testimony from other employees. Unfair or improper methods of obtaining evidence are generally excluded. However, the French Defender of Rights has acknowl - edged that certain evidence obtained unfairly (such as clandestine recordings) may be considered if it is indispensable to establishing the truth, and if the intru - sion into the privacy of the individuals concerned is strictly proportionate to the purpose pursued. French case law similarly allows evidence obtained unlawfully or unfairly to be submitted in court, pro - vided it is essential to exercising the right to evidence and does not disproportionately harm the interests of the opposing party (Cass. ass. plén., 22 December 2023, No 20-20.648). Investigators must therefore carefully balance these competing interests when deciding whether to admit or rely on evidence obtained through potentially unfair means.
• the next steps in the investigation, including, where possible, an estimated timeline; • the continued obligation to maintain confidentiality following the interview; and • the fact that a written summary of the interview will be prepared, reviewed, and signed for validation. 3.8 Stopping the Interview If an interviewee requests to stop the interview, their request must be respected immediately, and the inter - view should be suspended or terminated. It is essen - tial to document in the interview record that the inter - viewee wished to stop, including, where appropriate, any reasons they provided for doing so. This ensures transparency and demonstrates that the employer has respected the interviewee’s rights while maintaining a clear record of the investigation. 3.9 Minutes In France, minutes of interviews are typically taken during an HR internal investigation. These should accurately and comprehensively reflect the content of the interview. Key points regarding interview minutes include the following. • Review and signature: Interviewees should have the opportunity to review the minutes to ensure their statements are correctly recorded. They are generally asked to sign the minutes to acknowl - edge their accuracy. • Summarised minutes: While minutes should be as accurate as possible, summarised minutes may be used in practice, provided they faithfully capture the substance of the interview. • Who prepares the minutes: It is not necessary for an external party to draft the minutes. One of the investigators can prepare them, provided impartial - ity and accuracy are maintained. If the investigation is outsourced, the external provider usually pre - pares the minutes. • Impartiality and accuracy: Whether prepared inter - nally or externally, the minutes must preserve the integrity of the interview process and ensure that the content can be relied upon for any subsequent actions, including disciplinary or legal proceedings.
155 CHAMBERS.COM
Powered by FlippingBook