A manager of an insurance company was dismissed for having had an intimate correspondance with another employee and for storing on his professionnal emailbox private messages with erotic pictures attached. The employer argued that the employee knew that these emails and attachments would be seen by his assistant and that exchanging personal emails with the company’s infrastructure was prohibited by the company internal rules.

Contrary to the Labor Court, the Court of appeal considered the dismissal invalid and sentenced the employer to pay damages to the dismissed employee.

The Supreme Court confirmed on July 5, 2011 the decision of the Court of appeal pointing out that : if a file (it seems the term « file » was used to cover private emails and erotic pictures stored on the professional mailbox as it was the case in the dismissal letter) not expressly flagged as being private can be opened by the employer, its content cannot be used against the employee if it appears that it is private.

It has been considered by the Supreme Court that the use by the employer of private emails and erotic pictures stored on the professional mailbox of an employee violates the employee’s right to privacy in the workplace.

In this case, the Supreme Court stressed some important facts : the litigious emails and erotic pictures attached had been sent by another employee and the dismissed employee had only stored them in the emailbox without communicating them to anybody nor recording them on the hard drive of his computer.
Pascale Gelly & Caroline Doulcet
Published in the Privacy Advisor the IAPP newsletter Oct 2011 Volume 11 n°8