OD FLASH | On September 25, 2024, the Labor of the French Supreme “Cour de Cassation” further developed its case law on the validity of an employee’s disciplinary dismissal based on private conversations (no. 23-11.860).

In this case, an employee was dismissed for gross misconduct for having exchanged sexist and degrading e-mails with other people, using a professional messaging system installed on a computer provided by the company. The Versailles Court of Appeal declared the dismissal null and void, overturning the judgment handed down by the Labor Court on the basis of articles L. 1121-1 of the French Labour Code and 10§1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The ruling also noted that the disputed remarks had been exchanged during a private conversation with three people using the professional messaging system installed on his work computer, in a strictly private context unrelated to his professional activity.

The company appealed to the French Supreme Court, arguing that the exercise of the freedoms set out in article 10 of the ECHR may be subject to certain restrictions or sanctions provided for by law. The company criticized the Court of Appeal for failing to investigate on whether the sanction for an employee’s sending, from his professional e-mail account, of images and comments with stigmatizing, demeaning and disseminating content about women to at least one of his subordinates, was not justified by the nature of the task to be performed and proportionate to the aim pursued. The company also complained that the ruling failed to deduce from Article 10 of the ECHR and Article L. 1121-1 of the French Labor Code that employees enjoy freedom of expression within the company within the limits of abuse, and that the e-mails in question were of a private nature, even though they had been sent from the employee’s professional e-mail account to one of the company’s employees who was a third party, so that they necessarily related to professional life.

The French Supreme Court rejected the employer’s appeal, confirming that the dismissal was null and void. Relying on articles 8 of the ECHR, 9 of the French Civil Code and L. 1121-1 of the French Labor Code, it held that an employee is entitled, even at work, to respect for the privacy of his private life, which implies the secrecy of correspondence. Accordingly, the employer cannot rely on personal messages sent by the employee using a computer tool made available to him for his work, in a strictly private context and unrelated to his professional activity, to punish him. Moreover, the Court reiterated that a reason based on the employee’s personal life cannot justify disciplinary dismissal, unless it constitutes a breach of an obligation under the employment contract. The court therefore ruled that, since the conversation was private and not intended for public disclosure, and did not constitute a breach by the employee of any of the obligations arising from his employment contract, the dismissal was null and void.

This solution demonstrates the Cour de cassation’s increased determination to protect the privacy of employees. This was also illustrated by a ruling dated March 6, 2024 (no. 22-11.016), in which this ground was used to deprive of real and serious cause a dismissal based on explicitly racist and xenophobic remarks sent by an employee to his professional e-mail address. 

The solution would inevitably have been different if the employee had made such remarks publicly within the company, in the presence of other employees who had complained (Cass. Soc Nov. 8, 2023 n°22-19.049).

The French Supreme Court is very protective of private conversations, even if they come from the employee’s work e-mail, and seems to place only little weight on the content of the disputed remarks: despite their sexist and degrading nature, the mere fact that the conversation was private places it outside the employer’s disciplinary powers, and cannot justify dismissal.