France, Court of Cassation, 19 December 2018 17-14631

Identification of the case

• Respect for private and family life (art. 7 CFREU)
• Protection of personal data (art. 8 CFREU)

• Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties, in particular Article 6. 3°
• Article L. 1121-1 Labour Code

Summary of the case

In the present case, a company decided to implement a geolocation system to monitor the time spent by its employees on mail delivery. In concrete terms, the distributors take with them a mobile box that they activate themselves and which records by geolocation, every 10 seconds, the time spent on mail delivery. Claiming that this geolocation device was unlawful, the Southern Federation of Postal and Telecommunications Activities South PTT (hereinafter the Federation) has sued the company before the High Court. The federation argued that other means of monitoring working time exist, such as the mobile time clock which records not only the actual dispensing time but also any immobility of the distributors, the self-declaration system or control by a manager.

On appeal, the judges rejected the federation's request and ruled in favour of the employer.

• Civil judicial enforcement

Declare the unlawfulness of the geolocation device and prohibit its operation.

In accordance with Article L. 1121-1 of the French Labour Code, a geolocation device must be justified by the nature of the task to be carried out and proportionate to the goal sought. Confirming its case law (Court of Cassation, Social Division, 3 November 2011, No. 10-18.036), the Court of Cassation considers that a geolocation system "is not justified when the employee has freedom in the organisation of his work". By deciding to grant a large degree of autonomy to the employee, the employer has given up the right to exercise a strict supervision over the service provided by his subordinate. Thus, in the case of an itinerant worker, as long as he has a great degree of freedom, he may be considered responsible for choosing the route that seems most appropriate to him.

With regard to proportionality control, according to Article 6. 3° of Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties, processing may only involve personal data that are "adequate, relevant and not excessive in relation to the purposes for which they are collected and their further processing". According to the Court of Cassation, the use of a geolocation system to monitor working hours is lawful only when such monitoring cannot be carried out by any other means, even if it is less effective than geolocation.

In the present case, the geolocation device for monitoring working time is an intrusive tool in the private life of distributors. The employer should have preferred other less intrusive tools, even if they are less effective. The Court of Cassation thus criticised the Court of Appeal for not having demonstrated that the geolocation system implemented by the employer was the only means, or at least the least intrusive, of ensuring the monitoring of its employees’ working time, and this in proportion to the aim pursued. The use of geolocation is disproportionate in so far as the disadvantages resulting from particularly serious invasions of privacy far outweigh the benefits which could derived from it in the management of working time.

Consequently, recourse to geolocation is only possible as a last resort, only if no other means are possible for the employer.

Role of the Charter and role of the general principles on enforcement

• Proportionality

Proportionality between the monitoring of employees’ working time and the protection of their private life.