Licensed for privately posting a video on Facebook

Notice to fans of challenge of all kinds on the internet, the power of disciplinary sanctions recognized to the employer extends to the content of videos broadcast privately on social networks.

The social chamber of the Court of Appeal of Reims confirmed, on November 16, 2016, (n ° 15/03197) the dismissal of a nursing assistant who had, like millions of people around the world, participated in the “Ice bucket” challenge. (Read more)…

The facts took place in a nursing home. The charity masquerade turned into a nightmare as she was fired for serious misconduct and three of her colleagues were sanctioned for throwing water seals at her.

The service, certainly spiced up with schoolboy sauce (she wore a wig, scotch on her mouth and sat down with her hands tied on a wheelchair) was deemed inappropriate and harmful to the image of the establishment.

In labor law, (and it does not matter whether one is an amateur or not of this very “Hanounesque” humor, everything is a question of proportionality. Indeed, the employee had finished working, and had had a exemplary behavior The employer himself acknowledges that she has always given satisfaction since 2012, when she was hired.

Consequently, did the acts committed deserve the ultimate sanction taken against an employee: dismissal for serious misconduct. The social chamber of the court of cassation recently ruled on this proportionality criterion and retained in a recent judgment dated June 15, 2016, that “the isolated nature, in the long professional career of the employee, (...) did it was not impossible to maintain the employee in the company and did not constitute serious misconduct and, making use of the powers that it holds under Article L. 1235-1 of the Labor Code, considered that the dismissal was not based on a real and serious cause… ”(Cass. soc, of June 15, 2016, n ° 14-28.376).

But this decision rendered by the Reims Court of Appeal raises a second point that deserves our full attention: The privacy of the video. The dismissal would be based (bailiff's statement in support) on a video broadcast on the employee's personal Facebook account, not accessible to the public since published under private status and therefore only visible to her friends.

The judgment which lays the foundations for the right to respect for the private life of an employee for comments disseminated on social networks is the Nikon judgment (Cass. Soc. 2 October 2001 n ° 99-42.942).

In a case of insults against an employer, the judges of cassation established the principle that a Facebook profile had a private status if it was "accessible only to persons approved by the person concerned, in very limited numbers "(Cass. Civ. 1st of April 10, 2013, n ° 11-19.530).

In our case, the judges have succinctly brushed aside the question of invasion of privacy. However, the question is important since it delimits on the one hand the very moving borders which separate the personal and professional life of an employee and on the other hand determines the legitimacy of the production of the means of proof of an employer. .

(The question would not have arisen in the same terms if the video had been posted on the employer's Facebook account, if it had been accessible to all…).

In short, a decision that deserves in more ways than one to be submitted to the judgment of the judges of cassation while waiting, learn to be wary of your "friends" gleaned on Facebook.