A theft discovered by means of unlawful surveillance camera system is not a valid ground for a dismissal

In a decision of 20 September 2018, the French Supreme Court confirms that the dismissal for theft discovered by means of a surveillance camera system that has not been brought to the employee’s attention is unfair. An employer who wishes to set up a surveillance camera system must first consult the social and economic committee or the works council (Art. L. 2312-38, para. 3 and art. L. 2323-47, para. 3 former of the French Labour Code) and inform employees of the implementation of such monitoring device. Any recording of images or words made without the employees’ knowledge constitutes unlawful evidence (French Supreme Court, 10 January 2012, n° 10-23.482).

In this case, an employee was dismissed for gross misconduct for committing a theft. To provide the evidence of theft and so justify the ground of the dismissal, the employer relied on the confessions made by the employee during her hearing by the police. However, this hearing followed a complaint by the employer based on the use of images from a video surveillance system that had not previously been brought to her attention. The employee challenged the validity of her dismissal before an employment tribunal.

The Court of appeal upheld the claim on the grounds that the statements made by the employee during this hearing could not be retained because it followed the use of unlawful evidence.

In support of the appeal before the French Supreme Court, the employer argued that the statements made by the employee during her hearing should be taken into account by the judges because they constituted an extra-judicial confession that was independent from the evidence collected by the surveillance camera system.

The French Supreme Court dismissed the appeal. The hearing of the employee by the police that served for her dismissal followed the filing of a complaint from the employer for a theft discovered by the means of unlawful surveillance camera due to the employee’s absence of information thereon. The French Supreme Court thus approved the Court of Appeal for having highlighted the link between these two pieces of evidence.
It should be noted that in criminal proceedings, recordings collected without the employee’s knowledge could be retained to prove the theft (French Code of Criminal Procedure, art. 427).

French Supreme Court, 20 September 2018, n° 16-26.482.