The validity of dismissing an employee for storing pornographic files depends on the prohibition of such acts in an IT policy, according to the Supreme Court.
The Labor Chamber of the Supreme Court says the communication and/or downloading of pornographic files at work by an employee, even if it had no impact on the activity of the company or on the employee’s work, can justify his dismissal for serious misconduct, provided it is prohibited in a company IT policy as opposed to a mere internal instruction note.
The court’s position results from two decisions of its Labor Chamber, the first on December 8, 2009, the second on December 15, 2010.
On December 8, 2009, the Supreme Court overruled a Court of Appeals decision to dismiss an employee for misconduct for storing three pornographic files on his professional computer in breach of a company instruction note.
To the contrary, on December 15, 2010, the Supreme Court confirmed the dismissal of an employee who had transmitted by e-mail and downloaded numerous pornographic files, including child pornography, in violation of the requirements of the company’s IT policy.
The decisive factor that explains the difference between these two decisions, issued a year apart, lays in the media that conveyed the prohibition to download pornographic material. In the first case, the company had prohibited the abuse of a company’s computer resources in a mere internal note of instruction, while in the second decision, the company had banned such acts in an IT policy attached to the internal rules. In France, the internal rules of a company—the réglement intérieur—are the media used to impose rules to employees which, if not followed, can be sanctioned by the employer. One of the risks of conveying rules via mere messages, e-mails or other instruction notes is that employees may claim not having been aware of the rules.
It is therefore crucial for an employer to state in advance clear rules relating to the use of the company’s computer resources in an IT policy attached to the réglement intérieur, to inform employees of the limits set forth by the company, of the consequences of noncompliance and of the means and data processing carried out to monitor the employees’ compliance to these rules. The adoption of internal rules must follow a specific procedure involving staff representatives.
