Alain Bensoussan
A French Court of Appeals recently confirmed the dismissal of an employee who had downloaded software not authorized by his company’s IT policy. The judges rejected the employee’s claims that the employer did not have the right to monitor his PC in his absence, reminding the employee that a professional computer had to be used strictly for professional purposes during the working hours and that an employer was therefore entitled to monitor it even without the presence of the employee.
A technician, who had already received a warning from the HR department after the discovery on his professional hard disk of software not authorized by the company’s IT policy, was dismissed after it appeared that he had subsequently continued to use such software.
The dismissed employee first brought an action before the Industrial Tribunal of Créteil, which found against him.
The employee then decided to appeal the decision before the Court of Appeals claiming that as his computer had been audited in his absence, the audit report on which his employer based the dismissal was not proper evidence.
In a ruling dated January 19, 2012, the Court of Appeals of Paris rejected the employee’s claims on the grounds that a professional computer had to be used strictly for professional purposes during the working hours and that as a result “the employer is entitled to monitor such use without the presence of the employee”.
The Court of Appeals first pointed out that in order to “assess the validity of the procedure and the real and serious nature of the grounds for dismissal given by the employer”, judges had to “base their findings on the elements supplied by the parties”. The Court underlined that “if doubt remains, it should benefit the employee”.
In the present case, the appeal judges noted that the IT policy, signed by the employee at the time of his recruitment, expressly prohibited the installation of unauthorized software programs in the computers assigned to employees. Judges also underlined that the employee, as any other employees, had been personally informed of such rule and of the fact, via an internal memo, that a loss of bandwidth would lead the company to analyze individual logs.
Such analysis conducted within the company revealed that the employee’s PC frequently accessed (195Mb for one day, i.e., a consumption exceeding the consumption of all other PCs of the company together) Internet websites that were obviously not of a professional nature.
Having regard to the foregoing, the Court of Appeals ruled that the employee had abnormally used the tool made available to him by his employer in a way that could harm the proper functioning of the company’s system and in contradiction with the IT policy he signed.
Lastly, it should be noted that in another case, the French Cour de cassation ruled that the company’s rules and regulations — which have a binding nature — might contain provisions that could limit the power of the employer to consult files sent or received by employees with their professional computer (2).
As a result, companies should therefore be very careful when drafting their internal rules and regulations.
For more information on “Employee Use of Company IT Tools” in different countries, you can read Lexing’s bilingual newsletter available here.
(1) CA Paris, January 19, 2012, SAS Zetes France (read here, in French).
(2) Cass soc, June 26, 2012, SAS Helpevia (read in here, French).