International Labor & Employment Law Committee Newsletter

Issue: July 2012

Editor: Tim Darby | European Editor: Paul Callaghan | Canada Editor: Gilles Touchette | Asia and Oceania Editor: Ute Krudewagen


Companies Do Not Have to Offer a Job Outside France to an Employee That Does Not Speak the Language of the Country Concerned

Agnes Aknin Erovic, JeantetAssocies, Paris, France

When an employee does not speak the language of the country in which an alternative job position is available, the employer is under no obligation to make an offer for this particular job when the employer is required under French law to try to find and find alternative work for an employee proposed for termination, the French Supreme Court has ruled.1

However, the court warned that it is up to the employer to prove that working in foreign language is necessary to fulfil the job abroad. Should the employer fail to bring this evidence to the court, the employer will be deemed to be in breach of its redeployment obligation and will be condemned to pay damages to the employee.

In the case at issue, an employee had challenged his termination on the grounds that his former employer failed to offer him a job position located in a German affiliate although he had the skills for doing the job.  The employee did not speak German.

Dismissal is considered by French courts as a tactic of last resort; before dismissing an employee, the employer must try and find alternative work for the employee proposed for termination. The search must be conducted both in affiliates located in France and outside the country. The proper procedure is for a company to make written enquiries in France and to its affiliates in the other jurisdictions, outlining the skills of the employee who is likely to be terminated and asking if any suitable openings exist, requesting written responses.

1French Supreme Court, May 10, 2012- n°11-12.496.

Naming a Folder in a Computer "My File" Is Insufficient to Invoke Employee Privacy Protections

Agnes Aknin Erovic, JeantetAssocies, Paris, France

Naming a folder "My files" does not suffice to protect it under employee privacy law because an employer could reasonably consider in good faith that "My files" means "My professional files" and the employer has legitimate access to professional files, the French Supreme Court has ruled.1

In a similar ruling rendered on December 15, 2009,2 the Supreme Court decided that putting initials on a folder is not enough to make it private.

Since the Nikon case that gave rise to an important decision on October 2, 20013 by the French Supreme Court, French courts have uniformly ruled that employees have the right to make reasonable personal use of the employer's professional tools. As a result, an employer cannot have access to the personal messages sent or received by the employee via a company's computer, even though the employer's policy prohibits the use of company's computers for private reasons. However, employees' right to privacy is not absolute. The employer is allowed to access files contained on the hard drive of the office computer of the employee when the files are not clearly identified by that employee as "personal". In short, documents in a folder that cannot be identified as "personal" will be considered as professional and the employer will be allowed to view them.

In the May 2012 case, an employer opened an employee's folder entitled "My files" without notice to the employee in question and discovered pornographic photographs. Based on the information thus discovered, the employer dismissed the employee for gross fault. The Supreme Court rejected the employee's claim that he should not have been dismissed because the folder name clearly indicated that the contents were personal, not professional, and the employer should not have accessed them.

1French Supreme Court, May 10, 2012, n°11-13884.

2French Supreme Court, December 15, 2009, n°07-44264

3French Supreme Court October 2, 2001, 99-42942

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