## Facts

- Société Nikon France employed Frédéric Onof as an engineer and department head starting April 22, 1991.
- On September 7, 1992, Onof signed a confidentiality agreement with related Nikon entities barring disclosure of specified confidential information; it did not bar employment with competitors.
- Nikon provided Onof a company computer for work and maintained internal rules prohibiting personal use of company computers.
- Nikon discovered a directory on Onof’s work computer labeled as “personal” and accessed it to read its contents.
- On June 29, 1995, Nikon dismissed Onof for gross misconduct, citing personal use of company computer equipment.
- Onof sued, seeking damages for dismissal without real and serious cause and payment of an indemnity tied to a collective-agreement non-competition clause.
- A Paris appellate court upheld the dismissal based on the contents of the accessed files/messages and treated the confidentiality agreement as effectively a non-competition clause, awarding the non-competition indemnity.
- Both parties appealed to the Cour de cassation.

## Issues

1. Whether a confidentiality agreement that restricts disclosure of defined confidential information can be recharacterized as a non-competition clause triggering a contractual non-competition indemnity.
2. Whether an employee retains workplace privacy, including secrecy of correspondence, such that an employer may not access files/messages identified as personal on a work computer, even if personal use is prohibited.
3. Whether evidence obtained by an employer through unauthorized access to an employee’s personal-labeled electronic files/messages may be used to establish gross misconduct and justify dismissal.

## Decision

- The Cour de cassation quashed the appellate judgment and remanded for reconsideration.
- The court held the confidentiality agreement was not a non-competition clause because it did not prohibit working for a competitor; the appellate court’s contrary reading distorted the agreement.
- The court held employees retain a right to privacy at work, including secrecy of correspondence.
- The court held an employer may not, without violating this fundamental freedom, read personal messages or access personal-labeled files on a work computer, even where non-professional use is forbidden by internal policy.
- The court concluded that the dismissal upheld on the basis of such accessed content rested on unlawfully obtained evidence and could not be sustained on that basis.

## Legal Principles

- Clear contractual terms limiting disclosure of confidential information cannot be transformed by courts into a non-competition restriction absent explicit language barring competitive employment.
- An employee’s right to privacy applies at the time and place of work and includes secrecy of correspondence.
- Employer monitoring and control of workplace IT tools is constrained by employee privacy rights; internal prohibitions on private use do not eliminate those rights.
- Accessing and using the contents of files or messages identified as personal through clandestine or unauthorized means constitutes an unlawful intrusion and produces inadmissible evidence for disciplinary action.
- A dismissal for gross misconduct cannot be justified by evidence obtained in violation of workplace privacy and correspondence secrecy.

## Conclusion

The court reversed rulings that (1) treated a confidentiality agreement as a non-competition clause and (2) upheld a dismissal based on an employer’s reading of files/messages labeled personal on a work computer, holding that workplace privacy and secrecy of correspondence bar such access and the resulting evidence.


Société Nikon France v. Onof, No. 99-42.942 (Fr. Cass. soc. Oct. 2, 2001)