(Cass. Soc., 2 February 2011 no. 09-72313; no. 09-72449)

In the first case (no. 09-72313), an employee had written an e-mail to his wife in which he insulted his superiors and announced that he would be absent from his workstation in the afternoon, with or without the permission of his managers. The e-mail in question was inadvertently sent by the employee to one of his colleagues, who promptly sent it on to the employer. When he discovered the contents of the e-mail, the employer decided to terminate the employee’s fixed term contract for serious misconduct.

In the second case (no. 09-72449), an employee had exchanged provocative and insulting e-mails with another employee of the company (who had been dismissed herself). The e-mail at issue, entitled "news", had been discovered inadvertently by the person replacing the employee, who had been able to access the computer thanks to the login codes provided by the employee himself.

In both cases, the judges of the Court of Cassation noted that the e-mails at issue were "connected to the professional occupation of the employee" and "were not of a private nature". They concluded that they "could [therefore] be used in support of a disciplinary procedure."

With these two decisions, the Court of Cassation first of all found that an e-mail "sent by the employee at the workplace and during work time" is a legitimate means of proof, provided that it has been sent from a professional e-mail messaging service and that the employer discovered it in a legitimate manner.

Secondly, it found that the content of the e-mails at issue could validly give rise to a disciplinary sanction, in so far as such content "was connected to the professional activities of the employee". The Court of Cassation thus considers that it does not fall within the bounds of the employee’s privacy.