France: Video Surveillance Cannot Permanently Monitor the Activity of an Employee Working Alone
An employer may monitor the performance of work and supervise and possibly sanction the defaulting employee. To do this, and provided that a restrictive framework is respected, the employer is allowed to use various processes such as geolocation or video surveillance. However, there are a few basic rules regarding the installation and operation of this type of system. In all cases, the installation of the mechanism must be carried out in accordance with the principles of transparency – with regard to employees and staff representative institutions – and proportionality. As soon as respect for the employee’s personal rights is at stake, the infringement must necessarily be justified and appropriate, in accordance with the famous maxim from Article L. 1121-1 of the Labour Code.
The balancing of the employee’s fundamental rights and freedoms against the legitimate interests of the employer, has given rise to a great deal of litigation. Nevertheless, it is sometimes difficult to know where the employee’s freedom ends and the employer’s power of direction and control begins. Very often, the main issue is the legality of the method of proof derived from a device, the legitimacy of which is disputed. In a judgment of 23 June 2021, the French Supreme Court’s Social Chamber provided a new example that sheds light on the scope and the modalities of control of the employee, by means of a video surveillance system.
In this case, an employee, who worked as a cook in a pizzeria, had been dismissed for serious misconduct due to facts that the employer intended to justify on the basis of images taken from a video surveillance system. The employee appealed to the industrial tribunal to challenge his dismissal. The Court of Appeal ruled in his favour and ordered the employer to pay various sums in compensation for notice and related paid leave, redundancy pay, back pay and related paid leave and damages for unfair dismissal. For the Paris Court of Appeal, the method of proof constituted by the video surveillance recordings had to be deemed unenforceable, since the installation of a camera in a place where the employee worked alone, necessarily infringed on his right to privacy. Arguing that the installation of video surveillance was justified by the nature of the task to be performed and was proportionate to the aim sought, namely the safety of persons and property, the employer appealed to the Supreme Court.
In a judgment of 23 June 2021, the Supreme Court agreed with the analysis of the Court of Appeal and rejected the appeal. Following a pragmatic approach based on Article L. 1121-1 of the Labour Code, the Court of Cassation accepted that “the recordings resulting from this surveillance system, which infringed on the employee’s personal life and was disproportionate to the employer’s alleged aim of ensuring the safety of persons and property, could not be used against the employee”. In this case, the employee was working alone in the kitchen and was nevertheless subject to constant surveillance by the camera installed there. Even though the stated objective was to prevent the employee from repeating breaches of health and safety rules, the system was deemed inappropriate in the circumstances.
Key Action Points for Human Resources and In-house Counsel
This case reinforces the point that businesses must take care to respect transparency obligations and the criteria of justification and proportionality, when implementing surveillance measures.