It can be tempting for an employer to check at any time, thanks to a geolocation system for professional vehicles, that its itinerant employees are indeed where they need to be. But he has no right. The use of geolocation, strictly controlled by the labor code (article 1121-1) and by the Data Protection Act (deliberation of June 4, 2015), does not make it possible to monitor the employee outside of his working time, as two judgments of the Court of Cassation have just reminded us, on March 22.
The first (21-24.729) concerns a driver of the company France Balayage dismissed in 2018 for having used his sweeper in the evening after work. The geolocation system installed on it enabled the employer to write to him: “On November 16, 2017, while you were assigned to a construction site in Chalivert (77), you used the vehicle at the end of the day to go to the street…, more than nineteen kilometers from your construction site…” The employer further noted that, over a given period, his “back and forth” have “added more than 250 kilometers per day to the truck’s mileage”.
The driver does not dispute the facts, but he maintains that the sanction is disproportionate, because he had to go to the bedside of his mother who was then seriously ill, and who has since died, in April 2018. He denounces the use of geolocation as “means of tracing” of his personal travels.
His dismissal is however validated by the appeal court from Amiens (Somme), 1er September 2021in these terms: geolocation is “justified by necessity” of “locate the vehicle in case of theft and know the mileage made”. The Court found that the extra kilometers added “fatigue and risk » for the health and safety of the driver, for which the employer is responsible, and that“no control of his private life[a] been set up”.
Unlawful means of proof
The Court of Cassation, seized by the driver, censures it, considering that the labor code has been “raped”as well as Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court of Appeal could not rule as it did after having “observed” that the vslocation data collection, officially intended for theft protection and mileage verification, had been used “to monitor the employee and control his location outside of working time”. From which it follows that “the employer had infringed his privacy, and that this means of evidence based on geolocation was unlawful”explains the Court of Cassation.
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