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The duty of loyalty arising from the employment contract between an employer and an employee also applies between employees!
About the decision of the Council of State of 10 July 2019 (n°408644) A protected employee, i.e. a staff representative, improperly used IT tools provided by the employer to access another employee's work email, without the latter's consent. The Conseil d'Etat ruled that this fraudulent intrusion constituted a breach of the duty of loyalty arising from the employment contract, even though it took place outside working hours and the employee was not at work at the time. He was dismissed for misconduct after the employer had obtained authorisation from the Labour Inspectorate because of his status as a protected employee. The dismissed protected employee therefore challenged this administrative decision, hence the jurisdiction of the Conseil d'Etat (administrative jurisdiction) and not the Social Division of the Cour de cassation.The Council of State ruled as follows:
The Council of State ruled that "an action by the employee outside the performance of his employment contract cannot justify dismissal for misconduct, unless it reflects a breach by the person concerned of an obligation arising from that contract".
The employee had committed an unfair act in the performance of his contract of employment and had failed to fulfil his professional obligations arising from this legal act.
This is not the first time that the High Administrative Court has sanctioned a protected employee for disloyalty.
In a decision dated 27 March 2015, the Conseil d'Etat validated a dismissal for breach of the obligation of loyalty due to a protected employee's use of his delegation hours to carry out another professional activity (CE, 27 March 2015, no. 371174, JSL, 13 May 2015, no. 387-7).
The duty of loyalty thus extends beyond the actual hours worked on behalf of the employer.
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