The legal context
Under French employment law, the implementation of a means of monitoring an employee’s activity must be justified by the nature of the task to be performed and must be in proportion to the purpose sought. It must also comply with a specific procedure involving informing employees in advance of such means of monitoring, information to and consultation with employees’ representatives (if any) and where relevant the intervention of the French data protection authority. Breach of these rules by the employer permits a court to reject any evidence obtained by illicit means against an employee.
In this context, what happens when the employer designates an individual whose role is to interact with an employee in order to gather evidence proving that the employee is not properly performing his/her duties? Is the evidence collected through this mean admissible to justify a dismissal?
In a recent decision of the French Supreme Court dated 19th November 2014, an employee was dismissed on the basis of testimony by an alleged customer claiming that the employee had not performed her duties correctly. Following her dismissal, the employee brought a claim for unfair dismissal before the employment tribunal.
The Court of Appeal considered that the presence of the supposed customer on the premises of the company was not a mere coincidence and in fact resulted from a stratagem implemented by the employer to create evidence supporting its decision to terminate the employee. The Court of appeal found in particular that the credibility of the testimony was not sufficient and that the supposed customer had in fact been designated by the employer to gather evidence for its benefit. The Supreme Court approved the conclusion drawn by the Court of Appeal that the evidence resulting from the testimony was not admissible since it was part of a stratagem put in place by the employer in order to monitor the employee’s activity without her knowing it. The dismissal was then deemed as unfair in the absence of evidence supporting it.
This solution is in line with established case law which prohibits any method of monitoring employees’ activity that disregards the requirement of loyalty in the employment relationship. This requirement prohibits the use of tricks and stratagems the purpose of which is artificially to place the employee in a situation in which a fault could be attributed to him/her. Such methods are of no avail for an employer trying to build a case for dismissal against an employee.