Can exchanging racist and xenophobic emails via professional email justify disciplinary dismissal?

Service-Public.fr replies:

In this situation, one of the factors likely to limit the employer’s reaction and disciplinary power is the sometimes permeable boundary between private and professional life.

Facts relating to the personal life of the employee cannot, in principle, serve as grounds for his disciplinary dismissal. By way of exception, dismissal for misconduct is possible if the employee fails to comply with his obligations under his employment contract (which could possibly result from these private acts) or if the private acts relate to working life.

In that case, improper computer manipulation had led to the publication of messages of a private nature and identified as such by their author. It was on that occasion that the employer decided to dismiss the employee concerned on grounds of serious misconduct. For the Court of Appeal, the dismissal was wrongly pronounced. This judgment is confirmed by the Court of Cassation: the alleged facts could not be linked to the employment contract.

The Court of Cassation takes this decision as an opportunity to reaffirm the principle of the employee’s right to respect for the privacy of his private life, including in the workplace and on working time.

The decision also reminds us of how delicate the distinction between personal and professional life is. In such a context, an employer considering dismissal for misconduct must exercise discretion in relation to the above-mentioned boundary, in order to adapt its response to the circumstances.