Can photographs and messages on a social network be evidence to fire an employee?

A nurse working in a hospital’s emergency department at night is dismissed for serious misconduct, drinking and introducing alcohol, and taking part in a swimsuit photo shoot while on duty. The employer relied on the production of messages and photographs from the private ‘Messenger’ group that the nurse used with some of her colleagues to justify the dismissal.

The employee contests that dismissal on the ground that the documents produced by the employer are a matter of her private life and constitute unlawful evidence. Both the criminal court and the court of appeal reject her application. The Court of Appeal considers that his social media exchanges demonstrate his consumption of alcohol at parties organized within the service and that the photographs, having been taken at the workplace for a former colleague, fall within the professional sphere, and can thus legitimately be produced at the debates.

The employee decides to go to the Court of Cassation. According to her, the Court of Appeal did not check the proportionality of the invasion of privacy by not verifying the professional nature of all the messages produced. It did not assess whether the production of those photographs, which came from its private account and which it did not authorize to be disseminated, was an indispensable interference with the exercise of the employer’s right of defense and proportionate to the aim sought.

The Court of Cassation dismisses his appeal. It recalls that the unlawful nature of a means of proof does not necessarily lead to its rejection of the proceedings; it is for the court to weigh the right to respect for the personal life of the employee against the right to proof. The latter may justify the production of evidence infringing the private life of the employee provided that such production is indispensable for the exercise of that right and that the infringement is strictly proportionate to the aim pursued.

Based on the findings of the Court of Appeal, the Court of Cassation considers that the production of these messages, corroborated by anonymous but consistent testimony, and these private photographs, were indispensable to the exercise of the right of proof and proportionate to the aim pursued; namely, the defense of the legitimate interest of the employer in the protection of the patients entrusted to the nurses employed in his establishment.