Unlawful employee monitoring system: what conditions for admissibility? - Proof of gender pay gap: the interim relief judge can order the communication of other employees' pay slips - Communication on the replacement of an employee: beware of de facto dismissal.
Because it restricts rights and freedoms by nature, the implementation of a system for monitoring and surveillance of employees' activities is strictly regulated: (i) the system (video surveillance system, badge reader, etc.) must be justified by the nature of the task to be performed and proportionate to the goal sought, (ii) employees must be informed beforehand, (iii) the works council, if it exists, must have been consulted beforehand, and (iv) the rules regarding the processing of personal data must have been observed. If one of these conditions is not met, the evidence obtained from the surveillance system is unlawful, which can be particularly problematic for the employer, especially when the evidence was the basis for a dismissal.
Three rulings of the French Supreme Court rendered on March 8, 2023 (n21-17.802, n20-21.848 and n21-20.798) illustrate this specific difficulties, in various situations: video surveillance set up without the employee being informed of its purpose beforehand; misappropriated badges or police reports obtained in an irregular manner.
The French Supreme Court had already accepted that, in this type of situation,...
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