Newsletter
April-May 2021
SUMMARY
- ARTICLE: “Your boss is watching you” or the limits to the modernisation of the surveillance of workers outside the company
- IN BRIEF: 1. An ethical analysis of the termination of established commercial relations 2.Webinars of the month !
ARTICLE
“Your boss is watching you” or the limits to the modernisation of the surveillance of workers outside the company
From 22 March to 2 April 2021, the trial against the French subsidiary of Ikea was held. 15 people, including two former CEOs, were prosecuted before the Versailles Criminal Court for illegally collecting and storing hundreds of data on their employees.74 civil parties (trade unions and individuals) have been filed to this day. The defendants incur up to 10 years’ imprisonment and the company a fine of 3,750,000 euros.
More specifically, the charges against the defendants are based on the collection of personal data by a fraudulent, unfair, or unlawful means; misuse of purpose; voluntary unlawful disclosure of harmful personal data; and breach of professional secrecy. The case broke in 2012 in the press and was followed by a complaint against X addressed to the Versailles public prosecutor’s office, on behalf of the departmental union of FO trade unions of Seine-Saint-Denis. After more than eight years of investigation, it has been revealed that IKEA France used private security companies by buying information from them, notably from police and gendarmerie files concerning IKEA France employees but also candidates for job offers.
While awaiting deliberation on 27 May 2021, this case has had the merit of highlighting the problem of surveillance in the workplace, its limits, and its challenges, which are even more essential in the age of teleworking.
Far from these methods, which sound like a real spy film, technological progress has made it possible to considerably improve employee surveillance tools, particularly by incorporating algorithms to process the data collected.
The problem that arises is not the power of surveillance itself, which is legally permissible because it is part of the employer’s power of direction, but the extent of this control, which should in principle be limited to the work sphere. However, with the explosion of teleworking, there is a risk that surveillance will spill over into the private sphere. Moreover, the increasing variety of types of data collected could tempt the employer to use them for purposes beyond the simple surveillance of work performance. The increasing use of new technologies in surveillance is such that in 5 years, the CNIL has recorded a 79% increase in complaints about the surveillance of workers by HR departments.
Aware of the reality of these risks increased by telework, the CNIL, considered as the “data police” in France, then drew up a working document “questions/answers” focusing on the analysis of two dimensions of algorithmic control of the teleworker: the one of data collection and the one of the use of these data.
With this document, it contributes to provide more security for employers by recommending certain surveillance methods and sets the criteria for the implementation of employee control.
The CNIL’s aim is to suggest ways for companies to maintain a balance between worker surveillance and respect for fundamental rights and freedoms, and more particularly respect for the right to privacy and the right to protection of personal data under Article 8 of the Charter of Fundamental Rights of the European Union.
For example, it invites companies to always act in accordance with the principles of fairness, transparency, and proportionality, which means that the employer must inform its employees of the existence of the surveillance system, its nature, its mode of operation and finally the purpose of the data collection. It therefore considers illegal tools that allow “permanent” surveillance, such as the keylogger that records all keystrokes made on a keyboard and encourages employers not to force their employees to turn on the camera during meetings.
The reality of surveillance abuses revealed in the IKEA case, added to widespread teleworking, should lead companies to measure and verify internally the risks to which they could be exposed if they do not sufficiently respect the means of privacy and data protection enforce by the European and French institutions.
IN BRIEF
1. An ethical analysis of the termination of established commercial relations
Paris Court of Appeal, 24 March 2021 – RG n° 19/15565
On 24 March 2021, the Court of Appeal handed down a judgment in a dispute concerning the abrupt termination of established relationships between Promod and one of its suppliers. This judgment suggests an interesting analysis of the abrupt termination of commercial relations by construing the provisions of Article L. 442-1 of the French Commercial Code through the prism of ethics clauses.
The facts are particularly interesting: Promod formalises its commercial relations with its suppliers through annual agreements including the company’s code of ethics as an annex. In this case, the code of ethics provided for the upstream validation by Promod of its suppliers’ subcontractors, particularly regarding working conditions on the production sites, and carried out control audits on these sites. One of these audits revealed that the production site, which had manufactured goods that Promod had just ordered from its supplier, did not comply with the provisions of the code of ethics, the International Labour Organisation, and the applicable legislation. As a result, Promod decided, among other measures, not to take delivery of the goods and notified its supplier of the termination of their commercial relationship.
The latter then sued the company for abrupt termination of established commercial relations.
The Paris Court of Appeal, upholding the first instance judgment, considered that the subcontractor’s violation of the supplier’s code of ethics made the termination foreseeable, thus ruling out Promod’s liability:
“Therefore, Promod legitimately lost confidence in this supplier as a result of the latter’s inability to integrate and assume the new standards made compulsory by virtue of the code of ethics, rightly considered essential by Promod, and it must be held that the abrupt termination of commercial relations was foreseeable for the company Paris Première, which, by its particularly serious breaches with respect to the framework contract binding the parties, caused this termination, which is exempted from fault on the part of Promod.”
This judgment is in line with the current trend to make companies increasingly responsible for social responsibility issues. This aspiration to transform companies into true actors of good CSR practices is still reflected in the directive adopted on 10 March 2021 by the European Parliament on “Due Diligence and Corporate Responsibility”. In short, companies are called on to redefine their commercial relations by considering societal issues.
2.Webinars of the month !
This month, Cazeau & associés took part in three webinars on new issues in business law:
– During the webinar organised by Business France (Invest in France) on 14 April 2021, Nathalie Cazeau spoke about the aspects of labour law and company law that every company needs to know in order to set up in France.
– On the same day, Nathalie Cazeau also participated in the webinar organised by the UIA on “Covid-19 testing, tracing and processing: what will the return to “normal” look like?” and discussed the issue of insurance against the risks of Cyber-attacks:
– On April 26, 2021 at 6 pm, Nathalie Cazeau will have the pleasure of co-chairing the next event of the Franco-Spanish Commission of the Paris Bar with Nuria Bové Espinalt on the theme of compliance, good governance, and ethics in companies in France and Spain.
Make sure to participate:
If you are a Paris lawyer, to participate, register here: https://lnkd.in/evac_yi
Otherwise, you can register here: international@avocparis.org
