It’s my business. Monitoring of employees, what are my rights?

Former Ikea France director Stefan Vanoverbeke arrives at the Versailles courthouse on March 22, 2021, ahead of Ikea France’s trial as a legal person with several of its former directors, on charges management of an elaborate system to spy on staff and candidates. (MARTIN BUREAU / AFP)

Sabrina Kemel is a lawyer specializing in labor law. Today, it details the rights of employees, following the indictment and the trial this week of leaders of Ikea France, for illegal collection and concealment of personal data between 2009 and 2012. A trial that continues until April 2 before the Criminal Court of Versailles.

franceinfo: How did the leaders of Ikea go beyond their rights?

Sabrina Kemel: They have set up clandestine and unfair measures which have not been brought to the attention of the employees, which in our law is not possible.

The law says that the employee must know that he is being investigated and that he can present his defense

Yes, the principle is that no information concerning an employee can be collected by a device that has not been brought to his attention.

Yet justice has just admitted that an employer could secretly investigate his employee?

In this case, it was an audit firm specializing in psycho-social risks, which had been commissioned by the employer to conduct an investigation following acts of moral harassment. It was not a matter of tracking or collecting personal information about this employee.

An employer can perfectly well set up an investigation in the case of moral harassment, especially since the staff representatives have been informed. There is nothing unfair about it, there is nothing fraudulent.

Can an employer spy on an employee’s mailbox?

The principle is that everything that is professional, everything that emanates from a professional tool, is professional. Unless the employee mentions it “personal and confidential”. So, an employer can perfectly access an employee’s mailbox and consult all the emails that are not stamped. “staff”.

What about the locker, the cloakroom, the office?

The locker is a little stricter. The search must be provided for in the internal regulations, and it must not disproportionately infringe the rights of employees. The employer must also have a legitimate reason for the search, and that the employee was present during the search, that he was warned.

He must also be able to oppose such control. He may even require the presence of a witness. For the office, all business therein is considered professional, unless it is stamped “personal”.

Can an employer install cameras, under what conditions?

Like any control device, it is subject to a fairly strict procedure. The CSE must be notified, the employees must be informed individually. We must explain to them what is the retention period, what is the legal basis, what it is for and what their rights are, and there must be a sign indicating the system in place. It must be justified. If we set up a video to prevent theft when there is no risk, that is not justified and the video will have to be deleted.

Are there places where you can’t install cameras?

Indeed, in the locker room, it is not proportionate. There are places that allow the capture of images and others not. Cameras should not continuously capture images, that is also prohibited.

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