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An employer can search your Facebook account for a reason for dismissal

A woman consults the social network Facebook. (JEAN-CHRISTOPHE BOURDILLAT / RADIO FRANCE)

It is a very important judgment that the highest magistrates in France have just handed down, whose decisions are scrutinized and applied by all the other jurisdictions. In 2014, a project manager from the Petit Bateau company posted a photo of the brand's new spring-summer collection for the 2015 season on her Facebook account. An image that had only been presented to the brand's sales representatives. . A perfectly confidential and strategic photo, therefore. The project manager posted it on her wall, where only people she authorized can access. Among them, another employee of Petit Bateau, a “Facebook friend”. She traced the matter to the management of the company which hastened, one suspects it, to dismiss its executive a little too focused on the communication.

However, the information was posted on a private “wall”. This is obviously the entire defense of the dismissed employee. The employer violated his privacy. The proof is not valid. His publications were reserved for a limited number of people. Except that, already, the employer spotted that among these “friends” were employees of competing companies. But ultimately, that is not the question. Until now, as the ActuEL RH site explains, the courts were trying to find out whether the disputed remarks, those which could be the cause of a dismissal, were held publicly or in the private sphere. On a restricted account or on an account open to all. If they were written on a wall with limited access, there could be no chase.

Except that it has just been decided otherwise, and via a somewhat complex reasoning. The judges of the Court of Cassation recognize that there has been an invasion of privacy. However, the dismissal is valid because the right to proof justifies it. That is to say that to have proof that the employee had indeed disclosed confidential information, the employer was obliged to go through it, by producing private information. The production of this information is essential for the exercise of the right to evidence and the invasion of privacy is proportional to the aim pursued. Morality, more than ever, even if you think you are out of sight of your employer, do not make any contentious comments on social networks – insult, defamation, disclosure of trade secrets. They could turn on you.

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