The French Supreme Court ruled on March 6, 2024 (n°22-11.016), that an employer cannot terminate an employee who has sent racist and xenophobic messages to a colleague via the professional email system,  if the messages were private.

Facts:

Due to an error made by one of the recipients of the emails, the employer became aware of the emails sent by the employee to his colleagues. The employee was dismissed for gross misconduct and challenged his dismissal by claiming that the employer has violated his private life as the emails were titled “personal and confidential”.

In return, the employer argued that, in accordance with the French Supreme Court’s rulings, a reason relating to an employee’s personal life can justify disciplinary dismissal if it constitutes a breach of an obligation arising from the employee’s employment contract.

Therefore, the employer claimed that the employee breached his employment contract’s obligations by sending racist and xenophobic emails via the professional email system.

The employer also argued that the employee abused the professional email system for personal purposes.

Decision:

The French Supreme Court considered that:

  • The messages were part of private exchanges between two employees;
  • The messages were not intended to be made public;
  • The employer had only become aware of the messages because of an error.

Moreover, even though the messages were sent via the professional email system, they were intitled “personal and confidential” and were part of the employee’s private life.

The messages have not demonstrated a breach of the employee’s obligations and they had no impact on the employee’s professional sphere (disruption of service, impact on the employee’s duties, etc.).

Besides, the French Supreme Court considered that the employee can use the professional email system for personal purposes as long as it is not abusive. The employee has sent nine private messages in 11 months, which was not abusive to the Court, regardless of their content.

To be reminded:

  • In principle, a reason relating to the employee’s personal life cannot justify disciplinary dismissal, unless it constitutes a breach of the employee’s obligation arising from his employment contract. It is also admitted that facts from the employee’s personal life can justify a disciplinary dismissal if they have a serious impact for the company of if they can be connected to the employee’s professional’s life.
  • An employee can use the company’s tools for personal purposes as long as there is no abuse.