Disciplinary punishment

Are anonymized testimonies sufficient to prove facts disputed by an agent?

Publié le null - Legal and Administrative Information Directorate (Prime Minister)

The use of anonymised testimony as a basis for disciplinary action may be permitted under certain conditions. That is what the Conseil d’État has just recalled in its decision of 5 April 2023.

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Image 1Crédits: auremar - stock.adobe.com

A contract staff member shall receive a disciplinary penalty of temporary exclusion of two months from his employer. During an in-house training session, he made sexist and homophobic derogatory or degrading remarks against his institution and some of his colleagues.

The staff member shall apply to the Administrative Court to have that decision quashed and to require his employer to remove from his file all the documents relating to the corresponding disciplinary proceedings.

The administrative court rejected his application. The officer decides to go to the Administrative Court of Appeal. The Commission shall annul the decision. In her view, the employer relied on two insufficient elements. On the one hand, anonymous testimonials from agents, not allowing the agent concerned to verify whether the authors of the testimonials had participated in the training session. On the other hand, an anonymised summary of a telephone investigation with unidentified agents who refused to confirm their statements in writing. The Administrative Court of Appeal therefore considers that these anonymised elements were not sufficient to prove the reality of the facts contested by the staff member.

The employer then decides to go before the Conseil d’État.

The Conseil d’État recalls, first of all, that the disciplinary authority may anonymize the testimony at the request of the witnesses, if disclosure of their identity may harm them. However, during the proceedings, if the official disputes the authenticity of the testimony or the veracity of its content, it is for the disciplinary authority to produce all the evidence to demonstrate the quality of the witnesses and to confirm the facts set out in the testimony, the judge then having to form his own conviction.

According to the Conseil d’État, the Cour administrative d’appel did not err in law and therefore dismissed the appeal brought by the employer.