This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
This article is an extract from our Annual Review 2015.
Workplace technology is blurring the boundaries between personal and professional lives. Our employment partners shed light on who's watching whom...
A view from France by Karine Audouze
Employers may now have more ways to access information about employees, but France's strict privacy rules mean that there is little they can do with what they find.
The French are fiercely protective of their right to privacy and this is not something they are about to give up any time soon. The rise in digital communications tools such as email and smartphones, along with easy access to social media platforms such as Twitter and Facebook, gives employers new means to vet and monitor candidates and employees.
Employers can now learn a lot more about their staff than they could in the past. However, French employers are still very restricted in how they can use that information - largely because of France's tough employee-protection laws. Individuals' right to privacy is embodied in the French Civil Code, while the country's data-protection law dates back to 1978. Employers also have a duty to protect the confidentiality of their employees' correspondence. These rules give employees the right to a private life in the workplace. In return, employees have a responsibility not to communicate confidential information or publicly insult their colleagues and employers.
Private or public?
The key question in France is if, and when, digital communication platforms such as email and Facebook will be deemed to be private or public. The lower courts have tended to come down on the side of the right to privacy.
Last year, a case was brought before the Civil Chamber of the French Supreme Court in which an employer sought damages against an ex-employee who had insulted the former employer on Facebook. The court ruled that the ex-employee's actions took place in a private sphere because only a very few individuals could access her Facebook wall.
Based on this ruling, if employees are cautious enough about restricting access to their Facebook accounts, then they can freely share their negative views about colleagues and employers. However, this could change if an upcoming French Supreme Court ruling on the issue comes down in favour of employers.
But it is not just insulting comments being uncovered by employers in the digital sphere. The Head of HR at one French organisation told me that an employee who had taken time off sick had posted news on Facebook suggesting that they were in Thailand opening a new restaurant. It was thought that someone from the office was probably Facebook friends with this employee, and they shared the news with other colleagues.
However the news broke, under current laws it is unlikely that the employer could act directly on information that was on a private wall. What the incident does show is that Facebook and other social media platforms render such employee behavior more visible.
Whatever further workplace changes digital communication brings, the right to a private life is likely to remain sacrosanct in French society. The trade unions are strong supporters of this, and in April they scored a victory after employers covered by the SYNTEC Collective Bargaining Agreement accepted an amendment that obliges executive employees to disconnect from remote-working devices during mandatory minimum rest periods. Employers must now ensure that employees are able to disconnect.
The amendment means that affected employers can no longer expect employees issued with a smartphone to respond to emails or phone calls at all hours.
When it comes to digital employment, the French are coming out fighting.
Click here to view an electronic copy of our Annual Review 2015.