Cass. Soc. 25 September 2024, no. 23-13.992
An employee was dismissed for gross misconduct for having copied sensitive business files onto five USB key belonging to her.
Appearing Before the lower courts, the employer produced a list of files obtained from an expert’s examination of the five USB key found in the employee’s office.
She argued that the USB key were personal to her and that the employer could not freely access their contents without her presence. She therefore requested that her dismissal be deemed to be without real and serious cause. Her claims were dismissed.
Referring to this case, the Court of Cassation first pointed out that access by the employer, without the employee being present, to files contained on personal USB key that are not connected to the work computer constitutes an invasion of the employee’s privacy..
Secondly, the Court pointed out that although this evidence was unlawful, it could be deemed admissible to establish the reality of the facts relied on in support of the dismissal.
The Court of Cassation applied the analytical grid laid down by the plenary assembly in 2023, i.e. the production of evidence must be essential to the exercise of the right to evidence and strictly proportionate to the aim pursued.
In this particular case, these two conditions were deemed to have been met in view of the employee’s behaviour, which, according to two witness statements, involved working on the computer of an absent colleague and printing numerous documents. The Court also noted the strictly professional nature of the data produced, as the expert had taken care to delete the personal files before handing over a copy of the USB keys to the employer.
The employee was therefore found guilty of gross misconduct.