France: The use of geolocation devices in professional vehicle: balancing the right to privacy and the right to produce evidence in court
Author: Natacha Lesellier
Under French law, a geolocation device cannot be used by an employer for any other purpose than those declared to the French Data Privacy authority (Commission nationale de l’informatique et des libertés, so-called CNIL) and made known to the employees. Case law has also ruled that the use of a geolocation device installed in the vehicle itinerant employees to control their working time is only lawful if employees do not enjoy the freedom to organise their working time and if their employer has no other means with which to monitor such working time. Furthermore, a geolocation device must not collect data outside of employees’ working time, e.g. trips made between their home and workplace or during break times. Employee must be able to turn off the device, at the end of their official working hours or during break times (Deliberation CNIL 2015-165 du 4-6-2015 art. 3 et 5: JO 17).
In the present case, the employer invoked the right to produce as evidence location data collected through a geolocation device installed in an employee’s company-owned vehicle to justify the said employee’s disciplinary termination.
The French Supreme Court overturned the Court of Appeal’s decision to admit such evidence and held, in a ruling dated March 23rd, 2023, that the geolocation device had been used by the employer to monitor the employee and control his whereabouts outside of his working hours, which meant that the employer had violated the employee’s right to privacy and that therefore the evidence was inadmissible.
According to the French Supreme Court, the Court of Appeal should not have admitted such evidence without first assessing whether it was essential to ensuring an employer’s right to defend themselves against claims brought by employees and if the impact on an employee’s right to privacy was proportionate to the aim pursued.
Key Action Points for Human Resources and In-house Counsel
Companies should seek advice before using geolocation data in disciplinary proceedings.
