An employee of an equipment hire company was summarily dismissed for making unjustified journeys, as shown by the geolocation records of his vehicle. The dismissal was upheld at first instance, and by the Court of Appeal of Nîmes.
The trial judge noted that the unjustified journeys of which the employee was accused were established by the geolocation records of his vehicle. The geolocation process had been declared to the French Data Protection Agency (CNIL) for the purposes of locating employee vehicles and ensuring the safety of goods and people on site. The employee had been informed of this in a receipted, registered letter that mentioned the purposes for which the geolocation information would be used. The dismissal, in the trial judge’s view, was therefore justified.
The social chamber of the Cour de Cassation, France’s highest civil court, disagreed. The Court ruled that prior to the implementation of any processing of personal data, the employees concerned must be informed of the identity of the data controller or its representative, the purpose(s) of the processing, the recipients or categories of recipients of the data, and of their rights to access data concerning them, see it rectified, or object on legitimate grounds. They should also be informed of the procedures for exercising these rights.
The court stated that while employers have the right to control and monitor their employees’ activities during working hours, they may not use a geolocation system to control employees’ activity without their prior knowledge. Similarly, the use of a geolocation system to monitor working hours is only lawful when such monitoring cannot be carried out by other means.
The Court concluded that the trial judge should therefore have considered whether or not the geolocation system used by the company was also intended, as declared to the CNIL, to monitor the employee’s professional activity and working hours, and whether the employee had been informed of the use of the system for this purpose.
The decision of the Court of Appeal of Nîmes was therefore set aside, and the matter remitted to the Court of Appeal of Montpellier for reconsideration. The employer was ordered to pay costs.
While technology can make the monitoring of employees easier than ever before, special care should be taken to ensure strict compliance with data privacy and other regulatory and legal requirements. If using such information to justify a dismissal, even greater care is required.
Cass. soc., September 6, 2023, n°22-12.418
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