[author: Capstan Avocats]
In France, actions taken by an employee in his or her personal life cannot generally be used by the employer to justify a disciplinary dismissal.
Dismissal for personal speech or activity can only be justified if it constitutes a breach by the employee of an obligation arising from the employment contract. According to case law, a private conversation that is not intended to be made public cannot constitute such a breach.
French courts tend to apply this principle very strictly, and a recent decision by the Court of Cassation provides yet another example of this.
In the case, the employer discovered that an employee had sent racist and xenophobic emails to colleagues using her work email. The employer dismissed the employee for gross misconduct.
In its ruling, the Court reiterated that employees are entitled to respect for the privacy of their personal lives, even at work. The emails in question were private exchanges within a group of coworkers and were not intended to be made public. The exchanges were therefore part of the employee’s personal life. Accordingly, the dismissal was found to be unfair.
Takeaway for Employers
This case illustrates just how strict the French courts are in protecting workers’ privacy. The expectation of privacy applies even in the workplace, and even if the means of communication is owned and controlled by the employer.
The employer would probably have had a better chance of succeeding in defending the dismissal if it had been based on the repercussions of the employee’s behaviour in the workplace, rather than solely on the content of the messages.
