The Employment Law Minute: A Practical Guide for HR

Tour de France, World Cup… How far can an employee go in following a sporting event during working hours?

Excessive use may constitute disciplinary misconduct

Prolonged use, continuous streaming or repeated consultation during working hours may, in theory, constitute disciplinary misconduct.

However, case law requires the employer to establish in concrete terms that such use was excessive. The courts have notably held that browsing history – including visits to maternity clothing websites, private travel websites or webmail services – did not make it possible to assess either the duration or the frequency of the consultations (Court of Appeal, 3rd Chamber, 11 June 2015, No. 40871).

The employer must therefore be able to demonstrate repeated, continuous or prolonged use that is clearly incompatible with the normal performance of the employee’s duties, as well as its impact on the tasks assigned to the employee.

Following a sporting event while on sick leave

According to case law, the fact that an employee attends a sporting event while on sick leave is not, in itself, sufficient to call into question their incapacity for work.

To rebut the presumption arising from the medical certificate, the employer must be able to establish the circumstances of the facts with sufficient precision, including the time of the event, its exact nature and the circumstances in which the employee attended.

It is also necessary to verify whether the medical certificate authorises the employee to leave home and, if so, whether the employee complied with the authorised time slots set by the CNS.

Private use of IT equipment belonging to the employer

A distinction should first be made between the use of IT equipment provided by the employer and the use of a personal device.

As regards IT equipment made available by the employer, case law generally accepts that limited private use may be tolerated, in the absence of any contractual provision or internal rule expressly prohibiting it.

However, the employment contract, an IT policy or any other internal policy may prohibit all private use. Where such a prohibition has been duly brought to the employee’s attention, a breach may justify disciplinary action which, depending on the circumstances, may extend to dismissal.

In all cases, the courts assess the validity of the sanction in light of all the circumstances of the case. They may take into account, in particular, any tacit tolerance on the part of management, the absence of a prior warning and the employee’s length of service.

Conclusion

In practice, occasionally checking the score or results of a sporting competition is generally acceptable. By contrast, prolonged streaming of a sporting event during working hours on IT equipment belonging to the employer may constitute disciplinary misconduct.

➡️ For any questions regarding employment law, please contact Marie Bena, Elodie Rousseau or Ilaria Cendret.