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The Supreme Court admits the spying of an employee by his employer, under certain conditions


A private investigator takes pictures. Photo illustrations. (LUDOVIC PETIOT / MAXPPP)

The case is surprising. An employer has been granted the right to conduct a secret investigation against an employee and to use its results to dismiss her. A decision which against the law clearly says “that no information concerning an employee personally can be collected by a device that has not been previously brought to his attention.”

This was to prove moral harassment. The story is that of an employee whom his subordinates accuse of all evils: of behaving badly, of profanity, of racial and discriminatory insults. They finally say that it creates an atmosphere of stress and conflict.

The employer will consult the staff representatives and will decide to conduct an investigation. For this, he will have recourse to an outside worker, a private detective. Naturally, he is not going to warn the incriminated employee, he will not hear her point of view. This investigation should therefore not be admissible, it is what will say the industrial tribunal which explains that it is a question of a “clandestine surveillance process” and that he is “unfair”. The employee wins her case. But the employer appealed. Ditto, the Court of Appeal considers it impossible for a person concerned not to be heard by the investigator to present his defense. For the judges, there is therefore dismissal without real and serious cause, and the employer must pay heavy compensation.

The employer will go all the way to Cassation. And there is a reversal: we do not joke with moral harassment. Since it is a question of proving such acts which endanger the health of others, the employer may well entrust a secret investigation to a detective. And the result of this investigation can be used as a legitimate reason for dismissal. In the Ikéa affair, this is obviously not the case.

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