- 26 Jan 2016
- Laurence Savelli, Lorraine Chéry
The Court of Appeal ruledon 12 November 2015, on the legitimacy of a dismissal with notice for an employee’s excessive personal Internet use during working hours. In this case, the employer accused the employee of playing online games for half of her working hours over the course of a month.
The employer found out about it while checking the websites that employees were using the most, a check that was specifically defined in the company’s in-house rules. It is also worth pointing out that these rules only authorised Internet access for work purposes.
To support her defence, the employee maintained that she was unaware of the in-house rules prohibiting personal Internet access and that the check carried out by her employer was illegal as it breached data protection provisions.
As far as knowledge of the in-house rules was concerned, the Court felt that the employee was not acting in good faith. The employment contract had been signed by both parties and it specifically mentioned the in-house rules available on the company’s Intranet. The Court pointed out that in any case, even if she really did not know about the in-house rules, the nature, definition and actual purpose of the employment contract made it clear that the employee was supposed to be working and not browsing the Internet during working hours.
In terms of the check on the websites visited by the employee, the Court first of all pointed out the following principles:
- Even if there was no prior notice with the CNPD or authorisation regarding the employer handling personal information, the employer is nevertheless entitled to monitor their employees’ activities in the workplace.
- To be valid, the evidence gathered by the employer must respect the employee’s privacy, including in particular the confidentiality of private correspondence in the workplace, even if this correspondence involved the use of a work computer and any personal use of the computer is prohibited.
- An employer is not allowed to check the employee’s workstation (including their messages) to punish their behaviour if such checks are exclusive and regular. Indeed, for the Court, such a check would constitute “surveillance” in accordance with the modified law of 2 August 2002 on the protection of individuals regarding the processing of personal data, which would not be covered by the circumstances authorised by article L. 261-1 of the Employment Code.
On the basis of these principles, the Court recognised the spot check of websites visited by the employee during working hours is valid evidence.
So as far as the Court is concerned:
- The check carried out by the employer did not involve the employee’s personal data (as the check looked at the websites visited and not the employee’s personal correspondence).
- In this case, the employer only carried out a spot check in accordance with the company’s in-house rules.
Lastly, seeing from this check that the employee had played two online games for 51.4% of her working hours during March 2012, and that this was between 9am and 3.59pm, which constitutes “excessive use” of the Internet, the Court ruled that dismissal with notice was justified in this case:
“By playing games on her work computer during working hours at an intolerable level, the employee breached the obligations defined in her employment contract and, with this offending attitude, she compromised the trust that must exist between the parties bound by an employment contract, to such an extent that the employer was authorised to dismiss her with notice for this reason alone”.
Court of Appeal, 12 November 2015, role no. 41245