In a decision dated March 6, 2024, the Labor Division of the French Supreme Court ruled that racist and xenophobic comments made in a private context via an employee’s work email are part of the employee’s private life and cannot validly justify a dismissal.
In this case, an employee was dismissed for gross misconduct for having sent by mistake, racist and xenophobic messages, labelled as “personal and confidential”, to other employees of the company via her professional email address.
The employee appealed to the Employment Tribunal to contest the validity of her dismissal, arguing that her right to privacy and confidentiality of correspondence had been violated.
The Court of Appeal upheld the employee’s arguments by ruling the dismissal was unfair. The judges noted that notwithstanding the manifestly “racist and xenophobic nature” of the emails sent by the employee from her work email account, they were part of private exchanges and were not intended to become public.
The French Supreme Court confirmed the the Court of Appeal’s decision and rejected the employer’s claims, reiterating that employees are entitled to respect for their privacy, even at work.
Accordingly, a reason based on an employee’s personal life cannot, in principle, justify disciplinary dismissal, unless it constitutes a breach by the employee of an obligation arising from their employment contract.
The French Supreme Court found that the emails were private exchanges and that the employer only became aware of them as a result of an error in sending them. Furthermore, the opinions expressed by the employee had no impact on her job or on the employer’s image.
In these circumstances, the employer could not base the dismissal on the content of the disputed emails.
While this decision may seem morally surprising, it is in keeping with the position of the French Supreme Court, which is committed to building a strict body of case law prohibiting employers from dismissing employees for matters relating to their personal lives (FSC, Plenary Assembly., December 22, 2023, No. 21-11.330).