"Émilie, HR director for an industrial SME, has been summoned for summary proceedings. Her employer has dismissed an employee for gross misconduct linked to an alleged internal theft. Problem: the accusations had not been substantiated. The result? The dismissal was deemed to be without real or serious cause, and damages were awarded."
Unfortunately, this story is a common one. In day-to-day personnel management, the need to act quickly and "put things right" sometimes takes precedence over a full legal analysis. And yet, in French labor law, evidence is king... and its absence can cost a company dearly.
When a disciplinary decision is based more on suspicion than on objective evidence, the company's entire legal security is in jeopardy.
So how can we avoid bad decisions based on a lack of evidence? What are the most common mistakes made by employers? And how can they be avoided through a more serene HR approach, supported by a partner lawyer?
Here's how.
Development
1. Mistake no. 1: believing that informal oral testimony is sufficient evidence
In many cases, rumor or "I've been told" fuels suspicion. But legally, unformalized testimony - especially if it's anonymous - has little probative value.
The rule: You need objective evidence that can be put to contradictory discussion in the event of a dispute: e-mails, videos, personal written attestations, audit reports, and so on.
Example in the field:
An employer summons an employee for moral harassment. In the absence of concrete evidence (e.g. insulting e-mails, written reports from identified colleagues), the entire procedure may be annulled for breach of the principle of fairness in the administration of evidence.
Lexelians tip: Before any summons, ask yourself this simple question: if the employee contests, will I be able to produce verifiable evidence to present before a judge? If the answer is no, stop the procedure and seek advice.
2. Mistake No. 2: Using video surveillance or recordings... without prior warning
Many companies equip their premises with cameras to secure their sites. But these devices can only be used against employees under certain strict conditions.
The rule: all video surveillance must have been duly declared, the employee informed, and the CSE consulted. Failure to do so renders the recording inadmissible. This was reiterated by the French Supreme Court in a 2022 decision (Cass. soc., March 8, 2022, n°20-20.648).
Field example:
A bakery dismisses a cashier for embezzlement observed on camera. However, no information note had been sent to the employee, nor had the CSE been consulted. Result: nullity of evidence → unfair dismissal → industrial tribunal compensation payable.
Lexelians tip: Incorporating video surveillance into an RGPD + labor law compliance grid is a winning combo. Our firm helps you document this cleanly, and anticipate any contentious use.
3. Mistake 3: Ignoring the right of access to disciplinary files
Taking an employee to court for disciplinary action (warning, layoff, dismissal) requires transparency and loyalty.
The rule: Every employee has the right to know exactly what he or she is accused of doing, and to have access to the documents making up his or her file. Refusal or late communication of these elements can destroy any procedure.
Case in point:
A company decides to sanction an employee on the grounds of "poor performance and inappropriate behavior with customers". No roadmap, no written feedback was ever formalized. The employee takes the matter to the industrial tribunal. The company was unable to produce any documents. The sanction was annulled.
Lexelians tip: Formalizing important HR exchanges (annual reviews, reminders, progress plans) is not suspect - it's protective. For both employer and employee.
4. Mistake n°4: Confusing the seriousness of the facts... with proof of their reality
Certain faults seem "obvious" to the management team: inappropriate behavior, insubordination, etc. However, it is not the manager's subjectivity that is the basis for a sanction... but the ability to prove the facts. However, it is not the manager's subjectivity that is the basis for a sanction... but the ability to prove the facts.
The rule: the burden of proof lies with the employer. And judges are consistently demanding: the facts must be precise, dated and detailed.
Case in point:
An employee is dismissed for "hostile attitude towards hierarchy" and "failure to comply with internal regulations". The company refuses to produce the written exchanges. The employee wins his rights for lack of sufficient justification.
Lexelians tip: When in doubt, document. And do so chronologically, factually and without emotional interpretation. This strengthens your case - and your credibility.
Conclusion: A well-prepared procedure means serene management for everyone
HR management is not a race against time. It's about anticipation, consistency and loyalty. A decision taken without proof is a major flaw in your company's legal protection.
With expert legal support, you gain not only security... but also confidence in your teams.
Do you have doubts about the soundness of an HR file? Need to secure a procedure? Let's discuss it. Lexelians can help you every step of the way, from dispute prevention to controlled resolution.
Expert opinion" box:
Charlotte D., associate at Lexelians
"Too many companies want to do the right thing... and rush into it. In labor law, it's not a matter of "punishing quickly", but of acting justly. Proof is not a detail: it's the foundation of rights. That's why we work with our clients from the very first warning signs, long before the spiral of conflict begins.
Read tomorrow: "Pre-dismissal interview: 5 HR mistakes to avoid".
▶️ Have you set up a secure HR charter to formalize your exchanges with employees? What practical tools do you use to document your personnel management fairly and preventively?
