OD FLASH | Personal Data Exploitation: Employer’s Right to Evidence vs. Employee’s Right to Privacy

Supreme Court, Social Chamber, January 22, 2025, no. 22-15.793

It follows from the application of Articles 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 9 of the French Civil Code, and Article L. 1121-1 of the French Labor Code that an employee has the right, even during working hours and at the workplace, to the respect of their private life.

However, case law now holds that the combination of Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms implies that the unlawfulness of a piece of evidence does not necessarily result in its exclusion from the proceedings. The judge, when requested, must assess whether the use of this evidence has compromised the fairness of the entire procedure, balancing the employee’s right to respect for personal life with the right to evidence. The latter can justify the submission of evidence that infringes on an employee’s personal life, provided that this submission is essential for the exercise of that right and that the infringement is strictly proportionate to the goal pursued (Cass. Soc., September 25, 2024, no. 23-13.992; Cass. Soc., February 14, 2024, no. 22-23.073; or Cass., Plenary Assembly, December 22, 2023, no. 20-20.648).

In the present case, employees hired as tele-secretaries by a company running a call center were dismissed for gross misconduct. They filed a claim with the labor court challenging their dismissals.

The employer, to substantiate the allegations made in the dismissal letters, submitted evidence obtained through the exploitation of personal data from the call center’s management software, used to control and monitor the employees’ activities.

The Court of Appeal of Dijon, in a ruling dated March 3, 2022 (no. 19/00646), after noting that the employer failed to inform the employees of this, emphasized that the right to evidence could justify the submission of data obtained from a system installed in violation of legal provisions, provided that it did not result in a disproportionate infringement on the employees’ right to respect for their private lives considering of the pursued objective.

The Court of Appeal observed that the examination of the submitted documents precisely, in detail, and individually confirmed the allegations made by the employer in the various dismissal letters. Since the data exploitation only concerned communications related to the employees’ professional activities, the judges concluded that the submission of these documents did not constitute a disproportionate infringement on the employees’ right to respect for their private lives considering the pursued goal and thus deemed the evidence submitted by the employer admissible.

The employees then filed an appeal with the Supreme Court.

The Supreme Court dismissed the appeal filed by the employees, thereby confirming the reasoning of the judges, who had concluded that the submission of elements infringing on the employees’ private lives was essential for the exercise of the right to evidence and proportionate to the goal pursued, which was the legitimate interest of the employer in ensuring the smooth operation of the business.