Member Article

A CFO of a company was dismissed for poor performance. He sued his employer arguing that his dismissal was unjustified. The company’s defense was based on several emails produced in court which were supposed to show the CFO’s poor quality work.

Under French law, the golden rule is that any system collecting or processing data including professional email systems must be declared to the Data Protection Agency (“CNIL”) in order to be legal.

In the present case, the employer had failed to make this mandatory declaration. Based on this, the Court of Appeals had refused that emails from this system be used as evidence in court and had therefore refused to look at the work emails produced by the employer.

The employer appealed to the Supreme Court.

On June 1^st, 2017⁴, the Supreme Court overruled the Court of Appeals’ decision. It held that failure to comply with the mandatory declaration of the professional email system did not prevent using these emails in court. The Supreme Court based its ruling on the fact that the system did not allow for an individual monitoring of the employees’ actions, meaning that it could not infringe on their private life or liberties. In addition, the CFO could not ignore that his work emails were being registered and kept in the IT system. Thus, the Court of Appeals should have accepted them as evidence in the case.

Interestingly enough, the Supreme Court refused to follow the Court of Appeals’ reasoning that the undeclared nature of the email system rendered the emails unusable.

This decision could prove very important to non-compliant employers as they cannot be prevented, on this basis, from using work emails in litigations with their employees.

However, the reasoning of the Supreme Court relied in part on the fact that the email system did not allow for individual monitoring of the employees’ activity (and thus was the object of a lighter declaration requirement to the CNIL).

Thus, a similar reasoning will not apply to email systems allowing employers to monitor employees’ activity. In a decision rendered on October 8, 2014, the French Supreme Court ruled that the absence of declaration or a late declaration to the CNIL regarding a system which automatically monitored employees at work was not a licit means of evidence and did not allow the employer to make use of the data collected through this means to terminate employees.⁵

Given that the declaration for the type of email system at hand resulted in a mere simplified declaration with no real control from the CNIL, the solution reached by the Supreme Court on June 1, 2017 appears rather pragmatic. If the CNIL itself does not feel the system represents a real threat to employees’ private life and liberties (and thus that a simplified declaration of the system suffices), then the courts should align with that view.