On December 11, 2024 (Cass. soc., Dec. 11, 2024, No. 23-20.716), the French Supreme Court upheld the dismissal of an employee who had sent insulting messages about the company and its executives via a company-provided cell phone. This decision appears to contrast with a previous ruling from March 6, 2024 (Cass. soc., Mar. 6, 2024, No. 22-11.016), in which the dismissal of an employee who sent racist messages via the company’s email system was deemed unfair due to the private nature of the exchanges.
In this new case, the employee had used a company-provided cell phone to send text messages to current and former employees who were engaged in litigation with the company. These messages contained homophobic insults directed at company executives. The employee was dismissed for misconduct, a decision that he challenged by arguing that his messages were private and thus could not justify disciplinary action.
The employee argued that his right to freedom of expression had been violated. He also argued that messages sent via the company’s tool cannot justify dismissal if they are private and not intended for public disclosure.
The Court’s ruling:
The French Supreme Court dismissed the employee’s appeal and validated the dismissal. The ruling highlights two key points:
- Limits to freedom of expression: While employees have the right to express opinions, the Court reaffirmed that this right is not absolute. The employee’s use of injurious and excessive language, such as derogatory homophobic nicknames for management, constituted an abuse of his freedom of expression, justifying his dismissal.
- The professional nature of the messages: The Court determined that messages sent via a company-provided cell phone were presumed to be work-related, particularly when their content concerned company affairs. The fact that these messages were exchanged privately did not negate their professional character, allowing them to be considered by the employer in a disciplinary context.
A new approach to workplace communications?
This decision suggests a shift in how private messages sent via company-provided devices are assessed in disciplinary cases. Previously, case law had suggested that as long as messages were not made public, they remained within the private sphere and could not justify dismissal. This ruling, however, introduces a new perspective: when the content of the messages is linked to the company and its operations, the employer may take disciplinary action, even if the messages were not intended for public disclosure.
It remains to be seen whether this decision signals a broader trend in labor law, potentially narrowing the protection of private communications in the workplace. Employers and employees alike should closely monitor future rulings on this evolving issue.