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3 December 2019
Electronic correspondence and employee privacy, a headache for employers!
Regarding a decision of the social chamber of the Court of Cassation of 23 October 2019 (Appeal No. 17-28.448) This case law highlights the difficulty that judges face in finding a fair balance between the rights of the employee and the legitimate interests of the employer. employee had spoken with a work colleague by means of her instant messaging on elements relating to the private life of a manager but using her work computer. She was dismissed for serious misconduct. To justify its decision, the employer invoked the fact that the comments had not been accompanied by the mention "personal" and that they were therefore presumed to be of a professional nature. The Court of Appeal declared that the messages from the instant messaging were not unlawful and therefore considered the dismissal to be unfair and ordered it to pay the dismissed employee various sums. On the other hand, the lower court judges considered that the fact of having searched for messages of a private nature constituted an invasion of privacy within the meaning of Article 8 of the European Court of Human Rights which provides that "everyone has the right to respect for his private and family life, his home and his correspondence". The judges specified that the fact of having found, in these messages, elements of the employee's private life, made it possible to overturn the evidence that these messages were of a professional nature. These messages became, through the elements they contained, messages of a nature private protected by the right to respect of the employee's private life at his workplace and the secrecy of correspondence. In other words, this gave rise to a presumption of the private nature of the said messages, which gave them greater protection. Appealing to the Court of Cassation, the employer argued that the employee's messages were of a professional nature since they were not marked "personal".This is how the Court of Cassation validated the position of the Court of Appeal by ruling that messages coming from a personal electronic mailbox distinct from the professional messaging which the employee had for the needs of her activity were covered by the secrecy of correspondence. The judgment confirms the position of the CJEU in the Barbulescu judgment handed down by the European Court of Human Rights (ECHR, gr. ch., September 5, 2017, no. 61496/08, Bărbulescu v. Romania: JurisData No. 2017-016884). This ruling offers even greater protection for employee correspondence. The question of protecting employees' correspondence then remains a real headache for employers who no longer know how to position themselves in relation to what they have the right or not the right to read. If we take the example of messages on Facebook, we can wonder if the fluctuation of judges' decisions, whose assessment is made on a case by case basis, depending on each situation, does not place the employer in a certain legal uncertainty. On this subject, the Court of Cassation specified, in a judgment of September 12, 2018 (Cass. Soc. September 12, 2018, n°16-11.690), that the comments broadcast on a closed Facebook account, accessible to a limited number of persons, concerned a conversation of a private nature, concluding that their publication did not constitute serious misconduct. The private nature of the conversations exchanged on a closed Facebook account had already been affirmed by the Court of Cassation in a judgment of December 20, 2017. The judges had deduced that the fact for the employer to access these posts via the cell phone of another employee “carried out a disproportionate and unfair attack on the private life” of this employee (Cass. Soc. September 20, 2017, no. 16-19.609). It would seem that the case law is clearly in favor of the protection of correspondence. The employer must therefore be wary if he wishes to use a private message from his employee even when it is sent from his professional computer, under penalty of being ordered to pay various sums in respect of a unfair dismissal. Even though the employer must rely on objective and concrete facts to dismiss an employee, not all evidence is considered lawful. THE Cécile ZAKINE's office assists employers with issues related to employee correspondence.
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