Actu
Diane Mullenex, Avocat à la Cour and Solicitor England & Wales, partner in charge of the TMT department, , and Clément Gautier, legal counsel: French Labour law Court confirms gross negligence dismissal of employees for statements posted on Facebook wall
November 2010 by Diane Mullenex, Avocat à la Cour and Solicitor England & Wales, partner in charge of the TMT department, , and Clément Gautier, legal counsel
Three employees of Alten, a major consulting and engineering company, had been dismissed
for serious professional misconduct after having criticised their company and supervisors on
Facebook wall.
The employer was informed by another employee who forwarded the Facebook comments to
the management. The company decided to fire the employees on the ground of “incitement to
rebellion and vilification of the company”.
Two of the employees challenged their dismissals before the Labour law court claiming that
they had not exceeded their freedom of speech (based on Article L 2881-1 of the Labour law
code) and that Facebook was a private forum. Furthermore, the various statements were
posted from home and on a Saturday night. The court had to make the balance between the
freedom of speech of employees, the apparent disorder that the employees may cause within
the company and the power of sanction of the employer in the event of serious harm to the
company.
The decision was particularly awaited because the use of social networks clearly raises the
issue of the limits on the respective rights and duties of employers and employees, especially
with regards to loyalty of employees.
The first Court formation composed of unprofessional judges, electives of employers and
employees, had been unable to give a ruling. The case was then remitted to a professional
Court who published its decision yesterday.
On both cases, the Court decided that the serious professional misconduct was constituted and
thus that the dismissals were fair. In one case however, even if the grounds of dismissal were
confirmed, the dismissal procedure was judged unlawful.
This ruling clearly decides that employees have to be “politically correct” to their employer
when using social networks and will undoubtedly be a precedent for further cases. This is also
a clarification that Facebook is a public forum, as one would have guessed.
Ichay & Mullenex Avocats is a French law firm focusing on all legal issues related to the new
technologies in France and abroad. They are considered experts in intellectual property and
Internet law, e-commerce, online gaming, data protection. Ichay & Mullenex Avocats also
assists its clients on all issues related to financing, mergers & acquisitions, restructuring, etc.
and advises them on their litigation and arbitration procedures.
