France: Recent Cases show that Employees should be Cautious with Social Networks
The Court of Cassation implicitly accepts that an extract from the LinkedIn profile of an employee dismissed without real and serious cause, may be produced by his ex-employer in an attempt to limit the amount of damages to be paid to him. In another case, a court of appeal ruled that an employee’s publication of images on LinkedIn from internal company documents could justify his disciplinary dismissal for breach of professional secrecy and the confidentiality obligation in his contract.
Social networks (Facebook, Twitter, Instagram, and LinkedIn) and their use by employees raise the question of their access during working hours by means of IT tools made available by the employer. The use of social networks is also increasingly raising the issue of employer control over comments and exchanges made by employees involving the company or members of its staff. Can the employer use information shared by the employee on these networks as evidence?
In a company operating in the defense sector, an employee, a project manager in the research and development sector, was subject to disciplinary dismissal after disseminating on the LinkedIn network images of an engine, as these elements were, according to the company, likely to be used by competitors. The company considered that he had not respected his obligation of confidentiality and professional secrecy (Paris Court of Appeal 23 February 2022).
In another case an employee was dismissed for professional incompetence. The employee challenges his dismissal in court. The ex-employer uses an extract from the employee’s LinkedIn profile to prove that the employee had found a new job quickly and thus limit the amount of compensation to be paid. The Court of Cassation ruled in favor of the employee who contested the interpretation of the elements of his LinkedIn profile: he had completed an assignment but had not found a job. However, the Court of Cassation accepts the use of the LinkedIn profile as evidence
Key Action Points for Human Resources and In-house Counsel
The use of the LinkedIn profile as evidence is interesting. Indeed, on a person’s LinkedIn profile, a lot of information is freely available.