French employment law - Overtime: a head of department obtains the entire content of its professional electronic messaging from BCO prud’hommes (CPH Montmorency May 24th, 2023)
In a decision of May 24th, 2023, an employee obtains from the conciliation and guidance office, the full content of Mr. X's professional electronic messaging for the period from April 19, 2020 to April 19, 2023
1) THE FACTS
Mr. X was hired by company Y, on July 18, 2014, under an open-ended, written contract, as Head of the Administrative Department.
The reference salary amounts to the sum of 9,574 euros gross.
On the day of the breakup, company Y had 10 employees.
The company falls under the National Collective Agreement for furniture trading of May 31, 1995.
The employee requests a judicial termination of his employment contract in April 2023.
2) MOTIVATION OF the Montmorency decision of May 24th 2023
The Office of Conciliation and Orientation of the Conseil de Prud'hommes de Montmorency, ruling publicly, by provisionally enforceable decision, according to the provisions of Articles R.1454-14 and R.1454-15 of the Labor Code, this decision can only be subject to appeal or cassation at the same time as the judgment on the merits;
- ORDERS company Y to communicate, within three months from the notification of the order, the following document:
- The full content of Mr. X's professional email for the period from April 19, 2020 to April 19, 2023.
Under the terms of Article R. 1454-14 of the Labor Code, the Conciliation and Guidance Office may, despite any procedural exception, order:
- All investigative measures, even ex officio;
- All measures necessary for the preservation of evidence or litigious objects.
In addition, under the terms of Article 15 of the General Data Protection Regulation (GDPR), the employee may obtain the communication of personal data concerning him.
The legislator, as well as the case law, have taken note of the difficulty for the employee to provide the proof necessary for the preservation of his rights, and this in adjusting the burden of proof,
Article 145 of the Code of Civil Procedure confers on the judge of the conciliation office the power to order certain investigative measures, if there is a legitimate reason to preserve or establish evidence which may be lacking during a future trial.
Whereas the Conciliation Board can order investigative measures if they are necessary in order to justify the heads of claims,
Whereas the applicant justifies the existence of a legitimate reason,
The Board grants the employee the following request:
- The full content of Mr. X's professional email for the period from April 19, 2020 to April 19, 2023
Considering that the company disputed being able to provide the elements of control of the workload of Mr. X on the period of employment and the SMS, the council does not grant this request.
These requests may be the subject of exchanges of documents between lawyers within the framework of the adversarial proceedings.
The circumstances do not show the Board the need to accompany this decision with a penalty payment.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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