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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 judges face in finding a fair balance between employee rights and the legitimate interests of the employer. employee had spoken with a work colleague She was dismissed for serious misconduct using her company computer via instant messaging, which contained information about the private life of a manager. To justify its decision, the employer argued that the messages were not marked "personal" and were therefore presumed to be professional in nature. The Court of Appeal ruled that the instant messaging messages were not unlawful and thus deemed the dismissal unfair, ordering the employer to pay the dismissed employee various sums. However, the lower court judges considered that searching for private messages constituted an infringement of privacy under Article 8 of the European Convention on Human Rights, which states that "everyone has the right to respect for his private and family life, his home and his correspondence." The judges specified that finding information about the employee's private life in these messages overturned the argument that the messages were professional in nature. These messages, by virtue of the elements they contained, became messages of a certain nature. private protected by the right to respect of the employee's private life in the workplace and the confidentiality of correspondence. In other words, a presumption of the private nature of these messages emerged, granting them greater protection. Appealing to the Court of Cassation, the employer argued that the employee's messages were professional in nature because they were not marked "personal."Thus, the Court of Cassation upheld the Court of Appeal's decision, ruling that messages from a personal email account separate from the professional email account the employee used for work purposes were protected by the confidentiality of correspondence. This ruling confirms the position of the Court of Justice of the European Union (CJEU) in the Barbulescu case (ECtHR, Grand Chamber, 5 September 2017, no. 61496/08, Bărbulescu v. Romania: JurisData no. 2017-016884). This ruling provides even greater protection for employees' correspondence. The issue of protecting employees' correspondence therefore remains a real conundrum for employers, who are no longer sure what they have the right to read. Taking the example of Facebook messages, one might wonder whether the fluctuation in judges' decisions, which are assessed on a case-by-case basis depending on each situation, doesn't place employers in a position of legal uncertainty. In this regard, the Court of Cassation clarified, in a ruling of September 12, 2018 (Cass. Soc. September 12, 2018, No. 16-11.690), that comments posted on a closed Facebook account, accessible to a limited number of people, fall under the category of a private conversation, concluding that their publication did not constitute serious misconduct. The private nature of conversations exchanged on a closed Facebook account had already been affirmed by the Court of Cassation in a ruling of December 20, 2017. The judges concluded that the employer's access to these posts via another employee's mobile phone constituted a disproportionate and unfair infringement of that employee's privacy (Cass. Soc. September 20, 2017, No. 16-19.609). It would seem that case law is clearly in favor of protecting correspondence. Employers must therefore be wary of using a private message from an employee, even when sent from their work computer, under penalty of being ordered to pay various sums for wrongful dismissal. Even though employers must base their dismissal on objective and concrete facts, not all evidence is considered admissible. Cécile ZAKINE's office assists employers with issues related to employee correspondence.
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