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News

Does Private Life Exist in the Workplace?

The Debate

A recent decision on the burden of proving employee misconduct has revived the debate on the legality of evidence gathered by employers when monitoring employees in the workplace.(1)

 

In this case an employee was photographed by another employee while stealing his employer's petrol. The incriminated employee claimed that this constituted stealth monitoring, which is prohibited by Article 8(1) of the European Convention on Human Rights (right to the respect of private life and family life, domicile and correspondence). The court rejected this argument, arguing that the photos had been taken by a third party and not by the employer.

 

Likewise, a complaint to an employer by an employee who has received particularly shocking photos may not be considered as the result of illegal monitoring on the employer's part. Therefore, such complaint may not be dismissed.(2)

 

However, what if the employer is the instigator of the monitoring? May the evidence gathered by the employer be used legitimately to prove misconduct and justify dismissal?

 

Background

 

Article 11 of the Law on Protection against the Collection and Use of Personal Data 2002 (Article L251(1) of the Labour Code) authorizes the monitoring of employees by employers only where the following conditions are met:

  1. Monitoring is carried out only for reasons allowed by law - that is:
  • to safeguard employee health and safety;
  • to protect the company's property;
  • to control the production process (with regard to machines only); or
  • to control temporarily an employee's productivity or performance where such measure is the only means of determining the employee's remuneration, or within a flexible working framework.
  1. The joint committee (if any), the employee delegation (if any) or the Labour Inspectorate is informed, as well as the concerned employee; and
  2. Before implementing a monitoring procedure, the employer obtains the authorization of the National Committee for the Protection of Data.

Where one of the conditions is not met, monitoring is against the law and subject to criminal penalties (Article L251(2) of the code). May illegal monitoring nevertheless be used as lawful evidence of an employee's misconduct and justify dismissal? According to two recent Superior Court of Justice decisions, in principle the answer is yes.

 

Recent Case Law

In a recent case(3) an employee was dismissed for abusing the flexible working hours system. The employee had submitted (on at least two occasions) a fake timesheet in which he claimed to have worked eight hours over two days where he was in fact on paid leave. In order to prove these allegations, the employer presented a document entitled 'gate report' to the court. This document was based on data collected by a system for recording employee attendance. However, this monitoring system did not comply with Article L251(1) of the code.

 

First, the court noted that the employee had not requested that the document be removed from the debate on the grounds that it was unlawful, but rather had contented himself with questioning the reliability of the collected data. The court found that although the monitoring of entrances and exits had been diverted from its original purpose, this irregularity did not compromise the right to a fair trial or affect the reliability of the evidence. In addition, as the employee worked flexible hours, he should "be aware of and accept the fact that his employer periodically controlled working hours in order to prevent possible abuses".

 

In another case(4) an employee was dismissed for stealing cigarette refills from his employer. The latter sought to prove these facts by submitting the statements of police and other persons who had viewed a video recording. A camera had been installed in the basement of the company's premises the day before the theft, not to monitor employees but to prevent theft.

 

The court dismissed the employee's claim of breach of the right to private life and simply considered that "the video monitoring of a part of the workplace that is accessible to all employees is certainly not in breach of an employee's right to private life". The court thus declared that the dismissal was justified without examining whether the monitoring system complied with the conditions of the law.

 

Comment

These cases are reminiscent of the comments made by the Commission of Media and Communications when discussing the bill of the 2002 law:

 

"May an employer use data collected within the context of the legitimate monitoring of the workplace in support of a dismissal? As long as the data is not used for purposes other than those for which it was originally collected, it may be used before a court. If, for example, monitoring tools have been installed for the protection of the company's property and the data collected shows that an employee has violated the property of the company by committing, for example, a theft, the original purpose has not been diverted. This does not apply to the reliability or pertinence of the evidence."(5)

 

However, the debate is still open. In the Mister Minit Case the employer sought to establish a monitoring system for health and safety purposes. The employer alleged that video recordings were "liable to be used to prove offences of which employees and clients of the company might be guilty". The National Committee for the Protection of Data refused to authorize the establishment of the system, as the law on employee health and safety does not apply to "the prevention and detection of acts that may engage the responsibility of employees or of the employer".(6) The decision of the committee and its reasoning were confirmed by the Administrative Court.(7)