Court of Appeal, November 12th 2015
While accusing his receptionist (hereinafter the “Employee”) of using the company’s internet to play indie games during working time, the employer alleged that the Employee had breached the company’s internal regulations and terminated the Employee’s employment contract with notice.
The Employee denied having received communication of the internal regulations and challenged her employer’s decision alleging that the decision to terminate her contract was unfair as her employer, by monitoring her use of the internet, had violated article L.261-1 of the Labour Code (hereinafter the “Article”).
According to the Article, processing for the purposes of supervision at the workplace is only possible if needed for the security or the health of employees, for the protection of the property of the company, for the control of the production process handled by machines, for the temporary control of the production or the service of employees if this is the only way to ascertain the exact salary, or for the organisation of flexible working hours.
The Employee argued (1)that she had not been informed about the ban on playing games on the internet during her working hours, and (2) that her employer violated the Article to the extent that he made no prior notification to the Data Protection Supervisory Commission (Commission de Surveillance de la Protection des Données) and that the conditions of the Article had not been met.
(1) The Court of Appeal (hereinafter the “Court”) ruled that the employment contract, signed by the Employee, clearly stated that the way the employer operates internally is governed by internal regulations, with which the Employee undertakes to comply.
The Court noted that, even assuming that the Employee was not informed of the internal regulations, quod non, it must be stated that by its nature, its definition and its meaning, the employment contract shall oblige the Employee to do her work, and not to surf on the internet.
(2) The Court stated that the employer did at no time monitor the Employee’s personal emails or record her personal data, but carried out a spot check of the most visited websites by his Employee, in accordance with the internal regulations. This means that the Article is not applicable.
In conclusion, the Court stated that the Employee, while playing on her office computer during working time, violated her employment contract’s obligations and compromised, by her wrong doing, the confidence that should exist between the parties to an employment contract, so that the employer was entitled to dismiss the Employee.