Employment Case Law Selection - France | Second Semester of 2024

 
January 07, 2025

This newsletter presents four case law decisions handed down over the past few months:

  • The employer can use the content of personal USB drives to prove gross misconduct (Cass. soc., September 25, 2024, No. 23-13.992)

The French Supreme Court continues to expand the exceptions to the admissibility of unlawful and unfair evidence.

An employee with thirty-seven years of service was dismissed for gross misconduct for copying company documents onto her personal USB drives. After losing in the Court of Appeal, the employee filed an appeal to the French Supreme Court. She argued the unlawful nature of the evidence used as the basis for her dismissal, specifically the personal nature of the USB drives, the content of which was accessed and copied by her employer.

The French Supreme Court rejected this claim. It ruled that the employer had concrete reasons to justify the inspection of the employee's USB drives. Specifically, several colleagues testified they had seen the employee printing documents from the computer of an absent colleague, then placing said documents in a plastic bag. Furthermore, the French Supreme Court noted that the data was extracted from the USB drives by an expert in the presence of a bailiff, and only professional data was transmitted to the employer (excluding personal data).

The French Supreme Court concluded that the use of the USB drives was essential for the employer's right to give evidence, and the infringement on the employee's privacy was strictly proportionate to the pursued objective.

  • The employer cannot seek evidence in the employee's personal email (Cass. soc., October 9, 2024, No. 23-14.465)

Documents present in an employee's office are presumed to be of a professional nature and can therefore be used by the employer to prove an employee’s misconduct. However, this presumption does not apply to emails on a personal email account, as they are inherently identified as personal.

In this case, an employee was dismissed for willful misconduct, a dismissal that he subsequently contested before the Employment Tribunal.

The Court of Appeal deemed the dismissal valid as it was justified by emails exchanged between the employee and a third-party company found on the business premises.

The French Supreme Court overturned this decision, noting that the disputed documents, although discovered by the employer on the absent employee's desk, originated from the employee's personal email account. Therefore, the employer could not access and seize them in the employee's absence, making the evidence unlawfully obtained and therefore not admissible.

  • It is not possible to retroactively classify an employee as senior executive (Exempt) for working-time purposes (Cass. soc., November 20, 2024, n°23-17.881 F-D)

An employee, hired as Director of Administration and Finance, was dismissed. He referred the matter to the Employment Tribunal for claims related to the performance and termination of his employment contract, particularly concerning his working time.

To dismiss his claims for payment of overtime, the Court of Appeal first considered that his daily package agreement was void. It then noted that his working conditions, characterized by significant autonomy and substantial responsibilities, corresponded to those of a senior executive (exempt employee). Therefore, according to the Court of Appeal, he fell under this status, and the provisions relating to working time did not apply to him.

The French Supreme Court did not share this view. It found that the conclusion of an annual daily package agreement, even if it is subsequently declared unlawful or void, does not allow the employer to claim that the employee fell under the category of senior executive.

  • A senior executive (Exempt) must necessarily participate in the management of the company (Cass. soc., November 14, 2024, n°23-20.793 F-D).

An employee, hired as a senior executive, held the position of store manager. Before the Employment Tribunal, he challenged his senior executive status and claimed back pay for overtime.

The Court of Appeal rejected his claims. It considered that he was a senior executive (exempt employee) because he met the cumulative criteria of Article L. 3111-2 of the Labor Code, namely:

- A high degree of independence in organizing his own work schedule;
- Entitled to make decisions with a significant degree of autonomy;
- Compensation that was among the highest levels of remuneration systems within the company.

However, the French Supreme Court ruled that even if an employee meets these three cumulative criteria, the status of a senior executive can only be upheld if the employee participates in the management of the company.

Therefore, without the employee's participation in the management of the company, he cannot be treated as senior executive and be exempted from the working time regulations.

Related Professionals

Related Services

Subscribe to Dechert Updates