The impact of social networks at work: the Luxembourg Court of Cassation confirms that an employer has the right to use an employee’s WhatsApp messages to proceed with a dismissal if they are freely accessible on the employee’s work computer screen.

Facebook, Instagram, WhatsApp… social networks have become an integral part of many people’s daily lives, including in the workplace.

It is now common for these applications to be installed on employees’ work phones and computers.

But is their private use in the professional sphere without risk?

Put another way, are WhatsApp conversations on a work computer private or professional?

Between the employee’s right to privacy, the confidentiality of correspondence and the employer’s disciplinary power to conduct electronic surveillance, where does the line lie between what can and cannot be used?

To answer these thorny questions, our law firm looked at a judgment of the Luxembourg Court of Cassation of 15 December 2022, which upheld the decision of the Court of Appeal of 27 January 2022 and ruled on the legality of evidence obtained by an employer via a social messaging application used by an employee using professional equipment provided by the company.

1) A quick reminder of the rules applicable to employee surveillance

First of all, it should be recalled that employers cannot carry out unlimited electronic surveillance of their employees.

The conditions of validity and of obtaining evidence constituted by communications from social networks in the professional environment are particularly strict.

In compliance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data (RGPD), this surveillance is governed by Article L.261-1 of the Labour Code, which states:

(1) The processing of personal data for the purpose of monitoring employees in the context of employment relationships may be implemented by the employer only in the cases referred to in Article 6(1)(a) to (f) of the [RGPD], and in accordance with the provisions of this Article.

(…)

(3) Where the processing of personal data provided for in paragraph 1 is carried out :

1. for the purposes of the health and safety of employees,
2. to monitor the production or performance of the employee, where this is the only way of determining the exact salary, or
3. as part of the organisation of work on a flexitime basis in accordance with the provisions of this Code,

the provisions of articles L.211-8, L.414-9 and L.423-1 shall apply, except where the processing meets a legal or regulatory obligation.

In order to protect employees’ privacy – which includes discussions exchanged on or from a private messaging application – the employer may therefore only carry out electronic surveillance for the purposes of employees’ health and safety.

The main reason for this is to monitor production or the services provided by the employee, if this is the only way of calculating the employee’s exact salary, or to set up a work organisation in the case of flexitime.

It is also important to remember that correspondence exchanged by an employee using a work computer, as well as the files on it, are presumed to be work-related.

A notable exception is when they are specifically identified as being of a personal and private nature, for example when they are marked or located in a “private message”, “strictly private“, “personal file“, “private folder“, “private images“, etc. directory.

2) Validation by the Luxembourg courts of a dismissal based on WhatsApp messages

Having established these principles, it is clear from the two decisions referred to above that if the employer :

• does not conduct “continuous and exclusive” electronic surveillance (i.e. targeted surveillance), and
• he has free access to exchanges resulting from conversations in a private instant messaging application that is not work-related,

he can consult them without the employee being present and the said exchanges are no longer considered private but, on the contrary, professional in nature.

Free access will be deemed to exist if, for example, the application is opened on the employee’s computer screen without the computer being locked by a password.

If these conditions are met, the judges of the Luxembourg Court of Appeal ruled in the above-mentioned decision of 27 January 2022 that the WhatsApp messages displayed could be used and produced in court by the employer in the event that their content revealed misconduct on the part of the employee, justifying dismissal:

By leaving this computer switched on and unprotected by a password, allowing some of the messages forming part of the set of exchanges subsequently discovered to be read directly from the screen, A necessarily conferred on these messages a professional nature, not protected by the secrecy of correspondence. In this context, it is irrelevant that the respondent was not present when the messages in question were discovered.

The Court of Cassation confirmed the validity of the trial judges’ reasoning, emphasising the accessibility of insidious messages:

It follows from the statements in the judgment under appeal, firstly, that the messages cited in support of the dismissal and the request for termination of the employment contract appeared on the computer made available by the employer to the employee for the purposes of performing her employment duties, and therefore on a professional tool, secondly, that the employer accessed this computer in order to back up the professional content, and therefore for a legitimate reason in the context of the organisation of its business, and thirdly, that the messages in question were not specifically identified as belonging to the employee’s private sphere, so that it was not possible for the employer to identify their personal nature at first sight, and, fourthly, that the employer had had access to these messages when the email application had been left open, allowing some of the messages in question to be read directly from the screen, so that they were not protected by a password from which the employer could have deduced their private nature. On the basis of these findings, the appeal judges were right to conclude that these messages were of a professional nature, not protected by the secrecy of correspondence, and could be relied upon by the employer to justify the dismissal and the request for termination of the employment contract. It follows that the argument is unfounded.

In this case, the messages posted on the WhatsApp application on the employee’s work computer had been deemed to contain insults, if not at the very least remarks denoting a profound lack of respect towards her employer and other colleagues.

In the light of this case law, an employee cannot claim any protection for his or her private life or the confidentiality of his or her correspondence by criticising his or her employer, superiors or work colleagues using an email application left open on his or her work computer.

The best advice is to avoid using professional tools for private purposes, or else to clearly identify any email, image, document or file as belonging to the private sphere.

The Luxembourg Court of Appeal recently handed down a ruling on 9 February 2023 in which it upheld the validity of a dismissal on the grounds of photos present in a directory – not marked as private – on an employee’s work computer, in order to justify a dismissal, in the following terms:

The presence of these photographs of a pоrnоgraphic nature, appearing on the computer made available to the appellant for professional purposes on the employer’s premises and in a file not specifically identified as belonging to the employee’s private sphere, is indisputably of such a nature as to offend the sensibilities of any person who might come to discover them and denotes use of this work tool for private purposes.

Saving photos of this nature on the employer’s computer was serious enough to permanently undermine the employer’s confidence in the employee. (…) The judgment referred to must therefore be confirmed insofar as it declared the dismissal of PERSON1. with immediate effect to be justified and insofar as it consequently dismissed his claims for compensation.

If you have any questions about employment law in Luxembourg or would like more information about electronic surveillance in the workplace, the legality of evidence or the confidentiality of private correspondence, please do not hesitate to contact our law firm.