Video surveillance system: make sure employees are informed in advance!

Court of Cassation, Social Division, 6 December 2023, n°22-16.455

An employer who was the victim of diesel theft, installed a video surveillance system in a warehouse in order to identify the perpetrator.

An employee, identified thanks to the video surveillance system, was dismissed for gross misconduct.

The employee contested his dismissal, arguing principally that while the employer has the right to monitor and supervise the activity of its staff during working hours, it’s only on condition that he informs the company’s staff and the Social and Economic Committee (CSE) in advance.

In this case, as the employer did not provide such prior information, the evidence derived from these recordings is unlawful.

In his defence, the employer argued that he was under no obligation to inform the employees prior to the installation of the video surveillance system, since :

  • The only area in question was a simple warehouse containing diesel tanks, vehicles and storage space, which did not include any specific workstations;
  • The only purpose of these cameras was to film the area of the warehouse giving access to the diesel tanks and not the interior of the warehouse;
  • The sole purpose of installing the video surveillance system was to identify the perpetrators of the diesel theft and was in no way intended to monitor the activities of employees in the performance of their duties.

The employer pointed out that, in any event, the unlawfulness of a piece of evidence does not necessarily mean that it should be thrown out of the proceedings, since the right to evidence justifies the production of items that infringe privacy, provided that such production is essential to the exercise of that right. He considered that in this case, the recordings were the only evidence that could be used to establish the reality of the thefts committed by his employee and were therefore essential to the exercise of the right to evidence.

The Court of Appeal, with the approval of the Supreme Court, dismissed the employer’s claims on the grounds that the video surveillance, although installed for the purpose of identifying the perpetrators of the theft, also made it possible to view the activity of the employees in their workplace, which meant that it was indeed a system for monitoring the employees’ activity, of which they should have been informed prior to its installation.

The Court concluded that the evidence based on these recordings had been obtained unlawfully, without prior information, and was therefore inadmissible.

Furthermore, the Supreme Court reminds us that illicit evidence is not systematically declared inadmissible. Indeed, the judge must assess whether the use of such evidence undermines the fairness of the proceedings as a whole by balancing the employee’s right to privacy against the right to evidence.

However, it’s up to the party producing unlawful evidence to argue and demonstrate that its inadmissibility would undermine the fairness of the proceedings.

In this case, the judges considered that the employer had not made such a request and did not even examine the question of the admissibility of the unlawful evidence.

This decision may seem contradictory to a recent ruling by the Cour of cassation concerning the employer’s use of evidence obtained by a video surveillance system to justify the dismissal of an employee accused of voyeurism in the women’s toilets. In this case, the Court of Cassation had accepted the admissibility of evidence obtained by a video surveillance system that had not been brought to the employee’s attention beforehand, ruling that the system had been installed for the purpose of securing a storage area not open to the public and the corridor giving access to it, and not for the purpose of monitoring employees’ activity, regardless of the fact that the orientation of the cameras also made it possible to view the entrance to the toilets overlooking this corridor (Cass. Soc., 22 September 2021, n°20-10.843).

Strangely, the High Court had been sensitive, in this judgment, to the real purpose of the video surveillance system set up by the employer, an argument which was, on the other hand, automatically rejected by the judges in the judgment of 6 December 2023.

The differences in the High Court’s solutions therefore call for the utmost caution when it comes to setting up a video surveillance system.

Thus, while the rulings handed down by the Plenary Assembly on 22 December last suggest greater flexibility in terms of the admissibility of evidence obtained in an illegal or even unfair manner, the relevant solution remains, in practice, to inform employees of the installation of a video surveillance system, even if its primary purpose is not to monitor their activity.