by Philippe Desprès
Gide Loyrette Nouel
Under French labor law, any employer or supervisor has the right to directly monitor the employees. However, an employer who intends to set up an elaborate supervision device (such as telephone tapping, video surveillance, clock-in and clock-out or computer monitoring) in order to identify and prevent wrongful or illegal activities within the company must comply with the following requirements:
prior information and consultation of the works council;
in case of personal data recording, a prior declaration to the French Data Protection Agency (CNIL);
reliability of the device (i.e. it must be guaranteed that the employer cannot act on the device so as to make up some evidence against an employee);
balance/compliance with employee privacy rights in the workplace (e.g., personal electronic files and personal e-mails cannot be opened by the employer); and
a prior information of each employee.
Should the company fail to comply with any of these requirements, it could not use any evidence obtained through such device against an employee in court.
The surveillance of a specific employee can also be implemented when the employer has legitimate reasons to suspect a wrongdoing or illegal activity on the part of the employee. For instance, in a recent case dated May 23, 2007, an employer, who suspected that his employee had been exchanging personal e-mails with two identified individuals outside the company with the purpose of setting up a competing company, was granted an authorization from the relevant judge to have, in the employee's presence, a bailiff check and record the content of these personal e-mails. The Supreme Court ruled that the minutes of the bailiff's findings were admissible evidence on the grounds that "the employer had legitimate reasons to suspect wrongful competition and the bailiff carried out his inquiry in the presence of the employee". As this type of procedure does not include any debate with the employee before the judge, it has the advantage for the employer of taking the employee by surprise on his or her workplace and avoiding disappearance of the suspected evidence against the employee before the inquiry.
However, the following steps must be followed in order for this procedure to be lawful:
the relevant judge must grant an authorization, which supposes that the employer established (i) his legitimate interest in initiating the procedure (e.g. he can reasonably suspect the employee's wrongdoing or illegal activity) and (ii) that the requested inquiry by the bailiff is proportionate and necessary to the protection of the employer's rights (e.g. the procedure will provide useful evidence to the employer without excessive invasion of the employee's privacy);
except in cases of absolute emergency, the employee must be at work during the bailiff's inquiry.