In Société Nikon France SA v M. Frederic O., dated 2nd October 2001 and which has only recently been published, the French Supreme Court (Cour de Cassation) decided that the right to privacy of correspondence was absolute and that an employer was not allowed to access the personal email folders of its employees.

In this case, specific provisions of the internal workplace rules of Nikon France, which formed part of the contracts of employment of their employees, prohibited the latter from using for personal purposes the electronic systems put at their disposal for professional use.

The employer examined the content of the personal mailbox of an employee in order to ascertain whether this prohibition was being respected. The employer considered that it was entitled to access the mailbox, notwithstanding the fact that such action was not provided for in the company’s internal rules, on the basis that under French labour law an employer has a general right to monitor the activities of its employees during working hours. As a result of its investigation it dismissed the employee on the ground that the latter had failed to respect the internal rules of the company by using the electronic resources of the company for personal ends and that this behaviour amounted to a fault (“faute grave”) which was sufficiently serious to deprive the employee of any right to compensation for his dismissal.

The Cour de Cassation held that the dismissal was contrary to the law since the means used to establish the grounds for dismissal violated a basic principle - the right to respect for private life - which extends to the private life of employees when they are at their workplace.

The Court relied on both article 8 of the European Convention on Human Rights and also on specific French legal provisions (article 9 of the Code civil, article 9 of the Code de Procédure Civile, article L.120-2 of the Code du Travail). The court did not consider whether the provisions of Articles 10 or 11 of the EC Directive 95/46 EC might be applicable.

The immediate consequence of this decision is that from now on, notwithstanding any provisions to the contrary contained in internal rules applicable to the workplace which prohibit the use of emails for personal purposes, a French employer is no longer entitled to verify the content of the personal mailbox of an employee, in particular with a view to disciplining or dismissing the latter.

The UK position

Employers in the UK are also subject to article 8 of the European Convention on Human Rights due to the Human Rights Act 1998 coming into force in the UK on 2 October 2000. If similar facts to the above case arose in the UK it is likely that the English courts would adopt a more robust approach and reach a different result. Inspection of emails by an employer after reasonable notice to the employee is likely to be permitted in the UK.

It is critical however for employers to ensure that they have clear guidelines in place for employee usage of email. Adequate steps must be taken by the employer to ensure employees are made aware that firstly the guidelines are in place and secondly that monitoring will take place to enforce the guidelines. Employers should also restrict monitoring to legitimate business purposes.

© Herbert Smith 2002

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