On November 12 2015 the Court of Appeal ruled on the legitimacy of a dismissal with notice for excessive personal internet use during working hours.(1)
The employer accused the employee of playing online games for half of her working hours over the course of one month. The employer had discovered this while checking which websites employees were using the most – a check that was specifically defined in its in-house rules. These rules also authorised internet access for work purposes only.
In her defence, the employee maintained that she was unaware of the in-house rules prohibiting personal internet access, and that the check carried out by the employer was illegal as it breached data protection provisions.
With regard to knowledge of the in-house rules, the court felt that the employee had not acted in good faith. The employment contract had been signed by both parties and specifically mentioned that the in-house rules were available on the company's intranet. The court pointed out that even if the employee had been genuinely unaware of the in-house rules, the nature, definition and actual purpose of the employment contract made it clear that the employee was supposed to be working and not browsing the Internet during working hours.
In regards to checking which websites had been visited by the employee, the court first pointed out the following principles:
- Even if no prior notice has been given to the National Commission for Data Protection or there has been no authorisation regarding the handling of personal information, an employer is nevertheless entitled to monitor its employees' activities in the workplace.
- To be valid, the evidence gathered by the employer must respect the employee's privacy – in particular, the confidentiality of private correspondence in the workplace – even if this correspondence involves the use of a work computer and any personal use of the computer is prohibited.
- The employer is not allowed to check employees' workstations (including their messages) to punish their behaviour, if such checks are exclusive and regular. For the court, such a check would constitute 'surveillance' in accordance with the modified Law of August 2 2002 on the Protection of Individuals Regarding the Processing of Personal Data, which would not be covered by the circumstances authorised by Article L 261-1 of the Employment Code.
On the basis of these principles, the court held that the checking of websites visited by the employee during working hours was valid evidence.
As far as the court was concerned, the check did not involve the employee's personal data, as the employer had looked at the websites visited and not the employee's personal correspondence. In addition, the employer had carried out the check in accordance with the company's in-house rules. Lastly, as the check showed that the employee had played two online games for 51.4% of her working hours during March 2012, which constituted 'excessive use' of the Internet, the court ruled that dismissal with notice was justified, noting that:
"By playing games on her work computer during working hours at an intolerable level, the employee breached the obligations defined in her employment contract and, with this offending attitude, she compromised the trust that must exist between the parties bound by an employment contract, to such an extent that the employer was authorised to dismiss her with notice for this reason alone."
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email ([email protected] or [email protected]). The Castegnaro website can be acessed at www.castegnaro.lu.