Surveillance of employees at their workplace is a complex and sensitive subject. It is essential to know the legal limits framing this surveillance to avoid any drift and guarantee that your practices respect the law while ensuring the safety and productivity of your teams. French case law, labor law principles and obligations relating to the protection of personal data come to define these borders.
1/ The legal framework for surveillance of employees
In France, surveillance of employees at work must respect several fundamental principles:
- Respect for privacy : Article 9 of the Civil Code guarantees the right to privacy of each individual, including that of employees. Any surveillance measure must therefore be justified by a legitimate reason, such as the safety of goods and people, or the prevention of behavior harmful to the proper functioning of the company.
- The principle of proportionality : Any surveillance action must be proportionate to the objective pursued. In other words, excessive or intrusive means should not be used to obtain information. For example, the use of surveillance cameras in an open office is less acceptable than in an area requiring enhanced security.
- Employee information : Employees must be informed of the monitoring systems implemented in the company. According to article L.1222-4 of the Labor Code, the employer is required to inform his employees about the devices that can affect their privacy, such as surveillance cameras, geolocation or monitoring of electronic communications.
2/ authorized monitoring devices and their limits
Surveillance cameras
Surveillance cameras can be installed in workplaces, but their implementation must meet a number of criteria. They can only be placed in specific areas, such as entries, sensitive areas or risk areas. On the other hand, surveillance in private spaces such as toilets, changing rooms or rest rooms is strictly prohibited. The permanent visual control of employees must also be justified by a real need, for example to prevent flights or guarantee the safety of the premises.
Jurisprudence, including a judgment of the Court of Cassation of December 1, 2004 (n ° 02-43.537), stressed that an employer cannot install cameras in a place where employees have a reasonable expectation of confidentiality. This judgment has confirmed that surveillance of employees in their workstation must comply with the principles of proportionality and compliance with privacy.
Electronic communications monitoring
Surveillance of employees’ email and internet connections also raises delicate issues. As a rule, an employer can have access to professional emails sent or received as part of the business activity. However, the use of personal emails must be excluded from surveillance except in the event of an exceptional situation or with a legitimate reason.
The Court of Cassation specified, in a judgment of February 13, 2001 (n ° 98-43.451), that the consultation of the personal emails of an employee without his consent is an attack on privacy, even in a professional environment. This principle was reinforced by the case law which imposed that, if the employer wishes to access personal emails, he must have a justified reason, in compliance with the rights of the employee.
Geolocation
The geolocation of employees, especially for mobile workers, is also supervised by law. The implementation of geolocation devices in the company’s vehicles is authorized provided that employees are informed and justify their usefulness, as in the case of transport vehicles or deliverers. However, these systems cannot be used to monitor the personal trips of employees outside the working hours.
In 2019, a judgment of the Court of Cassation (n ° 17-22.697) confirmed that the use of geolocation in the professional framework must respect a principle of proportionality. Thus, employees must be informed transparently and have a way to control these devices.
3/ Control of absences and performance
Surveillance or employee performance monitoring practices must not cross certain limits. The employer can monitor the attendance of employees via a score system, but it must not collect excessive data or interfere in the privacy of its employees.
For example, the use of software or applications to follow the activity of employees, such as task management or performance monitoring applications, must respect the right to privacy. An important judgment of the Court of Cassation of January 25, 2012 (n ° 10-21.231) recalled that an employer cannot use a monitoring system to exercise a systematic and intrusive control of the activity of employees without having a reason legitimate.
4/ The role of the Social and Economic Committee (CSE)
Before establishing surveillance systems, the employer must also consult the Social and Economic Committee (CSE), as provided for in the Labor Code. The CSE is an body which ensures the protection of employee rights and must be informed of the systems put in place to guarantee their confidentiality and their respect for individual freedoms.
The employer must, in fact, respect a principle of transparency and social dialogue. This includes the obligation to share the reasons why the monitoring tools are used and to explain how they meet specific objectives, such as security, productivity or compliance with internal rules.
