## Facts

- An employee, hired in 1995 as a draftsman, used an employer-provided computer at work.
- After erotic photographs were found in a desk drawer in the employee’s office, the employer searched the computer hard drive.
- The search revealed numerous non-work files, including files stored in a directory labeled “perso” (personal).
- The employer accessed these files in the employee’s absence and without summoning him to be present.
- The employee was dismissed in 1999 for gross misconduct based on the discovery of non-professional (including erotic) materials on the work computer.
- The court of appeal upheld the dismissal, treating the drawer photographs as exceptional circumstances justifying the inspection.

## Issues

1. Whether an employer may open and inspect files identified by an employee as personal on an employer-provided computer, in the employee’s absence, absent a specific risk or particular event.
2. Whether a dismissal for gross misconduct may be upheld when based on evidence obtained by opening employee-labeled personal files without required safeguards.

## Decision

- The high court quashed the appellate judgment in full and remanded for rehearing.
- It held that, except in cases of specific risk or a particular event, an employer may open employee-identified personal files on a work computer only in the employee’s presence or after the employee has been duly summoned.
- It rejected the appellate court’s reliance on the discovery of erotic photographs in a desk drawer as sufficient to satisfy the exception.
- Because the employer opened personal-labeled files without the employee being present or duly called, the appellate court erred in treating the resulting material as a proper basis for upholding gross-misconduct dismissal.

## Legal Principles

- Employees retain a right to privacy in the workplace, including for digital files clearly identified as personal.
- Files designated as personal by the employee are subject to heightened protection distinct from files presumed professional.
- Absent a specific risk or particular event, an employer may not open personal-identified computer files without the employee present or duly summoned.
- Employer monitoring and evidence-gathering in employment disputes must use lawful, proportionate methods; reliance on improperly obtained material can invalidate disciplinary outcomes.

## Conclusion

The court required procedural safeguards before an employer may access employee-labeled personal files on a workplace computer and quashed a dismissal upheld on evidence obtained by violating those safeguards, remanding for reconsideration under the correct rule.


Philippe K. v. Cathnet-Science, No. 03-40.017 (Cass. soc. May 17, 2005)