The Labour Chamber of the Supreme Court (Chambre sociale de la Cour de Cassation) upheld two decisions of February 2, 2011, that the casual tone of an e-mail sent by an employee in the workplace is not sufficient to characterize it as personal when the e-mail is “related to the professional activity of the employee.”
Two employees of a company were dismissed for serious misconduct for, among other actions, making certain remarks about their manager in e-mails sent to one another.
The employer became aware of the content of these messages during an audit that was carried out without the employees being present. The employees claimed that their e-mails were personal since they corresponded to a free and private conversation between colleagues. As a result, according to the employees, the employer was not entitled to read the e-mails or to use them as an evidence in a dismissal procedure against them. To argue their case, the employees cited the casual tone they used in their e-mails.
Contrary to the court of appeal, the Labour Chamber of the Supreme Court decided that the e-mails were professional because they related to the professional activities of the employees.
The Labour Chamber of the Supreme Court made this determination based on the fact that the e-mails
- had been sent in the workplace by an employee to another colleague;
- were not flagged “personal” or “private;”
- had as subject line “information,” which does not indicate that the content could be private;
- dealt with facts related to professional matters, colleagues and the manager of the employees;
- contained outrageous remarks about the manager of the employees.
As a result, the Labour Chamber of the Supreme Court determined that the employer was entitled to read the content of the litigious e-mails and to use them as lawful evidence to dismiss the two employees for serious misconduct.
