Social right. An employment contract occurs when a person undertakes to work for and under the direction of another person for remuneration. A power to organize work has been deduced from this jurisprudential definition of the employment contract. It is added, according to the formula of the famous Poliet-Chausson judgment of the Court of Cassation of… June 16, 1945, again repeated in substance in 1987, that we cannot “ deprive the boss of disciplinary power, inherent to his position (…) subject only to the control of the judicial authority”.
The legislator has regulated this disciplinary power, in particular by the Auroux law of August 4, 1982. However, except for discriminatory reasons, acts of moral harassment or acts of sexual harassment which are qualified by the law as “misconduct”, it was careful – and this is logical – to draw up an exhaustive list of behaviors at fault. It is up to the employer to demonstrate the reality of the fact, then to qualify it as wrongful action or wrongful abstention, to then apply a sanction which must appear in the company’s internal regulations, while following a procedure described in the labor code.
The question therefore arises of proof of what triggers this disciplinary power. There is little doubt that the rise and democratization of technologies for remote control of digital devices, video surveillance or geolocation have led to a renewal of the framework for assessing the exercise of disciplinary power by the employer.
Unfair circumstances
The litigation linked to the use of these technologies as a method of proof is abundant. Courts typically reject evidence obtained in unfair circumstances or by a process that causes an unjustified or disproportionate infringement of the employee’s rights and freedoms.
It is an original means to say the least which led to a ruling by the social chamber of the Court of Cassation on September 6, 2023: the use of a report made by a mystery shopper in support of a sanction. The latter is tasked by a company or service provider with pretending to be an ordinary customer to test the quality of services of any structure open to the public. The mystery shopper goes to the site to observe and evaluate the service, based on specifications and a series of criteria, possibly with a scenario defined by the sponsor.
An employee, employed in the catering sector, was the subject of a visit from a mystery shopper, who noted on this occasion serious breaches of the meal collection procedure. Based on the facts noted during this inspection, the employer initiated disciplinary proceedings against the employee in question which led to dismissal.
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