OD FLASH | Excessive personal use of work computers must be justified by a document showing the date and frequency of such use.

Cass. Soc., 29 mai 2024, n°22-19.832

In this case, an employee of a company hired as a programmer analyst on 5 January 1988, who had last worked as a developer/designer, was summoned to a preliminary interview with a view to dismissal for serious misconduct.

In support of this case, a computer maintenance technician intervened at the employee’s workstation to back up data to an external hard drive. When the ‘My Pictures’ document was transferred, the sight of nude photos of children and teenagers prompted him to inform management. Further investigation revealed several links to pornographic websites.

The employee was ultimately dismissed for gross misconduct for inappropriately using his work computer for personal purposes.

The employee then appealed his dismissal to the labour courts. In a judgment of 29 June 2022 (no. 19/02179), the Bordeaux Court of Appeal ruled that the dismissal was not based on serious misconduct or on real and serious grounds. La Poste then appealed on the grounds that the use of the computer and the professional connection to access pornographic images, including nude images of children and adolescents, constituted a serious breach of its contractual obligations, in particular the internal rules and the IT charter.

The Court of Cassation dismissed the company’s appeal on the grounds that, with regard to the consultation of pornographic websites, the documents submitted by the employer did not make it possible to establish the date of the consultation or its frequency, so that abuse had not been proven (i) and, finally, that the sanction was disproportionate in view of the employee’s medical records, his length of service and the fact that he had not previously been disciplined (ii).

With this ruling, the Court of Cassation reaffirmed the principle of proportionality in disciplinary sanctions.

This ruling once again illustrates the need for employers to document the facts and assess their seriousness before considering a disciplinary sanction, which may go as far as dismissal.

It is therefore necessary to be able to establish and justify the frequency of the abuse, for example by indicating the date of the hearing and the repetition of the hearing. Finally, a balanced assessment of the sanction to be considered must be made, taking into account the employee’s past record and the particular circumstances of the misconduct.