In a July 14 2015 judgment(1) the Court of Appeal (Labour Court) refused to allow an employer to prove an employee's drunkenness in the workplace using recordings from the company's surveillance cameras.

The employer, a restaurant manager, had dismissed his assistant manager with immediate effect for:

  • drinking excessive amounts of alcohol in the workplace after the restaurant had closed;
  • emailing the restaurant's daily turnover to a third party; and
  • being responsible for a discrepancy of €147 in the restaurant's takings.

In order to prove the employee's drunkenness in the workplace, the employer's primary evidence was recordings from surveillance cameras installed in the restaurant, for which permission had already been granted by the National Commission for Data Protection.

However, the court rejected this evidence on the following grounds:

  • It was not covered under Article L261-1 of the Labour Code, which states that "the processing of personal data can only be used for the purposes of surveillance in the workplace 1) for the health and safety of employees, or 2) for the purposes of protecting the company's property, or 3) to monitor the production process, solely as far as machines are concerned, or 4) to monitor the employee's production or other services temporarily when such a measure is the only way of determining the exact salary, or 5) within the context of a flexitime working structure in accordance with this code".
  • The National Commission for Data Protection had specifically stipulated when it gave permission for the surveillance cameras that "[t]he surveillance must not be used to observe the behaviour, movements or performance of the company's members of staff".

As for the email containing confidential information that the employee sent to a third party, the court felt that it was not:

"serious enough to justify dismissal depriving the employee of statutory compensation, especially as the company did not suffer any damage, as the recipient of the email thought that it was a spam message and so deleted it without reading the contents."

With regard to the discrepancy in the restaurant's takings, the court confirmed the ruling issued by the employment tribunal, which held that "the discrepancy for which the employee was blamed, without any proof that the employee was behind this discrepancy", could not justify dismissal with immediate effect.

As it was impossible to prove the employee's drunkenness in the workplace and the other allegations were not particularly serious, the court ruled that the dismissal with immediate effect for gross misconduct was unfair.

For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (guy.castegnaro@castegnaro.lu or ariane.claverie@castegnaro.lu). The Castegnaro website can be acessed at www.castegnaro.lu.

Endnotes

(1) Court of Appeal, Role 41176 (July 14 2015).