Personal use of working time: how far can the employee go?

Browsing a website, sending a personal message, completing an administrative task, or making a private call: occasional use of work time for personal purposes is common in the company. It does not automatically constitute misconduct.

The situation changes, however, when this use becomes excessive, affects the performance of work, unduly mobilizes company resources, or is used to develop a personal, paid, or competing activity.

The employer may then consider disciplinary action, which, depending on the seriousness of the offense, could include dismissal. In certain exceptional circumstances, the misuse of working time and company resources may even constitute a criminal offense.

It is still necessary to distinguish between reasonable tolerance and abuse and to gather evidence obtained under legally admissible conditions.

The employee must devote their working time to their professional activity

According to Article L. 3121-1 of the Labour Code, effective working time is that during which the employee is at the disposal of the employer, complies with his instructions and cannot freely attend to personal matters.

During this time, the employee must therefore perform the agreed-upon work and follow the instructions given to them. This obligation also stems from the employment contract, which must be executed in good faith in accordance with Article L. 1222-1 of the French Labor Code.

Using working time for purposes unrelated to professional activity can therefore constitute a breach of contract when it reduces the work actually performed or disrupts the functioning of the company.

However, not all personal activity is necessarily wrong.

Is occasional personal use permitted at work?

The Labour Code does not establish a general right for employees to use their working time or professional equipment for private purposes.

In practice, limited and reasonable personal use is generally accepted. An urgent call, a quick check of personal email, or a brief online transaction does not, in itself, justify a penalty.

The wrongful nature of the behavior depends in particular on:

• of its frequency and duration;
• of its impact on the work required;
• the employee's functions and responsibilities;
• internal company rules;
• of the existence of prior tolerance;
• the nature of the sites, messages or activities concerned;
• of the possible use of the employer's files, tools or data;
• of the harm or risk created for the company.

The line between absolute prohibition and total freedom is therefore not drawn. It depends on whether the observed use is reasonable or, conversely, abusive.

In what situations does personal use become wrongful?

Several behaviors can justify the exercise of the employer's disciplinary power.

Excessive personal use of the internet

Consulting websites for private purposes can become a fault when it is particularly frequent or prolonged and occurs to the detriment of expected work.

The employer must be able to establish the reality and extent of the connections. The mere observation of a few personal accesses is generally insufficient to constitute serious misconduct.

The assessment must take into account the number of connections, their duration, their distribution over time and their concrete impact on the employee's activity.

Repeated use of the phone or social media

The use of a personal phone during working hours may also be penalized if it becomes excessive, creates repeated interruptions or contravenes instructions justified by security, confidentiality or the needs of the service.

However, a total and general ban must remain exceptional and be justified by the nature of the task to be accomplished and proportionate to the objective pursued.

The same analysis applies to the use of social networks. Occasional browsing cannot be equated with an employee devoting a significant portion of their day to posting, exchanging, or managing personal accounts.

Engaging in paid work during working hours

The situation is more serious when the employee uses their working time to perform services for the benefit of personal clients or third parties.

The following may be affected:

• managing a personal business;
• the performance of paid work;
• customer prospecting;
• the preparation of quotes or invoices;
• the sale of products or services;
• the regular management of an independent business;
• carrying out tasks for another employer.

The employee then receives their remuneration while devoting all or part of the time paid by their employer to another activity.

The use of company equipment, files, materials or premises constitutes an additional factor of severity.

Engaging in a competing activity

Even in the absence of a non-competition clause, the employee remains bound, during the execution of the contract, by an obligation of loyalty to his employer.

Therefore, it cannot develop a competing business, divert customers, or use company information for the benefit of its own business or that of a third party.

This breach can be established even if the competing activity is carried out, in part, outside working hours. It is aggravated when it is conducted during working hours or using company resources.

Using company resources for purposes unrelated to work

Misappropriation of equipment, software, vehicles, files, raw materials or professional tools can also constitute an offense.

The severity depends in particular on:

• the value of the resources used;
• the duration of their use;
• the occasional or organized nature of the events;
• of the existence of personal enrichment;
• IT or confidentiality risks;
• the damage suffered by the company;
• of the concealment implemented by the employee.

What sanctions can the employer impose?

The employer may initiate disciplinary proceedings when they have sufficiently precise and verifiable evidence.

The punishment must be proportionate to the seriousness of the offense. Depending on the circumstances, it may be:

• a warning;
• of a reprimand;
• a disciplinary suspension, if the internal regulations or applicable rules allow it;
• of a transfer or disciplinary demotion, subject to the required conditions;
• of a dismissal for a genuine and serious reason;
• of a dismissal for serious misconduct;
• exceptionally, dismissal for gross misconduct if the intention to harm the employer is demonstrated.

Limited, isolated and inconsequential personal use will not justify the same penalty as paid activity that is organized and concealed over several months.

The employer must, in particular, take into consideration:

• the employee's seniority;
• its functions;
• their level of responsibility;
• his possible disciplinary history;
• the duration and repetition of the events;
• the instructions that had been given to him;
• indirect means;
• the damage suffered;
• the existence of a competing activity;
• the explanations presented by the person concerned.

A manifestly disproportionate sanction can be overturned by the labor court. An insufficiently justified dismissal can be declared without just cause, or even null and void when the measure infringes upon a fundamental freedom.

When can serious misconduct be established?

Gross misconduct is that which makes it impossible to retain the employee in the company, including during the notice period.

It can be considered when the employee:

• devotes a substantial part of his working time to a personal activity;
• engages in paid or competing activities during working hours;
• misuses the resources or data of his employer;
• deliberately conceals its activities;
• persists despite warnings;
• causes significant disorganization;
• harms the company's commercial interests.

However, the classification is never automatic. Judges examine the specific facts, their duration, their seriousness, and their impact on the employment relationship.

The mere fact that an activity is personal is therefore not sufficient to characterize a serious offense.

Can the misuse of working time constitute a breach of trust?

In a ruling dated June 19, 2013, the criminal chamber of the Court of Cassation upheld the charge of breach of trust against an employee who had used his working time and the resources made available to him by his employer to carry out a personal paid activity for the benefit of third parties.

The employee manufactured prostheses for external clients during his working hours and using company equipment.

The Court of Cassation considered that the use of working time for purposes other than those for which the employee was paid could, in these circumstances, contribute to the characterization of a misappropriation constituting a breach of trust.

This decision does not mean that every personal call, private connection, or work interruption constitutes a criminal offence.

The criminal qualification requires sufficiently serious facts and the gathering of all the constituent elements of breach of trust: delivery of property, funds or a value on condition of using it for a specific purpose, intentional misappropriation and harm.

It should therefore be reserved for specific situations, such as a parallel activity that is organized, remunerated and carried out using resources provided by the employer.

In its simplest form, breach of trust is currently punishable under Article 314-1 of the Penal Code by five years' imprisonment and a fine of €375,000. Aggravated penalties may be imposed in certain circumstances.

Criminal proceedings do not replace disciplinary procedures. The two approaches may coexist, provided that the facts and available evidence are carefully analyzed.

How can the employer prove the misuse of working time?

The employer must establish the facts on which the sanction is based. This may include, in particular:

• connection logs;
• the usage history of professional equipment;
• professional emails or documents;
• files saved on the workstation;
• testimonies;
• material findings;
• badge data;
• invoices, quotes or commercial documents;
• an internal investigation report;
• the employee's own statements.

The collection of this information must respect the employee's rights, in particular the right to respect for their private life and the confidentiality of correspondence.

Can the employer access the work computer?

Files created by an employee using the computer tool made available to him are presumed to be professional, unless they are clearly identified as personal.

In principle, the employer can access work files without the employee being present. However, files or directories expressly identified as personal benefit from enhanced protection.

The same vigilance applies to electronic messages. A message clearly identified as personal cannot be freely accessed or used by the employer.

However, it is not enough for an employee to name a hard drive or folder "personal" to remove the entire professional workstation from all control.

Does the monitoring need to be disclosed to the employee?

In principle, no information concerning an employee personally can be collected by means of a device that has not been previously brought to their attention.

When a system for monitoring activity is implemented, the employer must, in particular, verify:

• prior notification of employees;
• consultation with the social and economic committee when required;
• compliance of data processing with the GDPR;
• the purpose of the device;
• its necessity;
• its proportionate nature;
• the data retention period;
• the people authorized to access it.

An IT charter, attached or not to the internal regulations depending on its content, specifies the conditions of use of equipment, the tolerance allowed for personal uses and the methods of control.

Is evidence obtained illegally always excluded?

Case law no longer automatically excludes any evidence obtained illegally or unfairly.

Since the rulings issued by the plenary assembly of the Court of Cassation on December 22, 2023, the judge must balance the right to evidence and the opposing rights.

Inadmissible evidence may be admitted if it is essential to the exercise of the right to evidence and if the infringement of the employee's rights is strictly proportionate to the objective pursued.

This development does not allow employers to freely monitor their employees. Clandestine, continuous, or excessively intrusive data collection remains very risky. The necessity and proportionality of the method will be examined by a judge.

Before any sanction is imposed, it is therefore necessary to verify not only what the evidence demonstrates, but also the conditions under which it was obtained.

What is the time limit for an employer to discipline an employee?

According to Article L. 1332-4 of the Labour Code, no single act of misconduct can give rise to disciplinary proceedings more than two months from the day on which the employer became aware of it.

The starting point corresponds to the moment when the employer, or the hierarchical superior with disciplinary power, has a sufficiently precise knowledge of the reality, nature and extent of the facts.

An internal review or investigation may be necessary before initiating the procedure. It must be conducted diligently.

The employer must also comply with:

• the procedure provided for by the Labour Code;
• the applicable contractual provisions;
• internal regulations, if any;
• the prohibition against punishing the same acts twice;
• the time limits specific to the notification of the sanction;
• the specific guarantees applicable to protected employees.

In the case of a dismissal, the letter defines the scope of the dispute. It must therefore describe the facts in a sufficiently precise, verifiable, and legally relevant manner.

How to prevent misuse in the company?

Prevention is based first and foremost on rules that are understandable and proportionate.

The employer may, in particular:

• define reasonably acceptable personal uses;
• identify prohibited behaviors;
• specify the rules applicable to digital tools;
• to regulate the installation of software and the storage of private files;
• remind them of the obligations of confidentiality and security;
• prohibit the use of company resources for personal commercial activity;
• regulate the use of telephones in sensitive locations;
• inform employees about the control mechanisms;
• train line managers in incident management;
• apply the rules consistently to all staff.

A rule that is too general or excessively restrictive is likely to be difficult to apply. Conversely, the absence of a clear framework fosters misunderstandings and complicates the exercise of disciplinary power.

A regularly updated IT charter and internal regulations provide visibility to employees and better secure controls.

What course of action should be taken before imposing a sanction?

When misuse of working time is suspected, the employer must avoid an immediate reaction based on incomplete information.

It is generally advisable to:

1. preserve evidence without altering the data;
2. verify their legality and reliability;
3. determine the exact date on which the facts were known;
4. identify their duration and extent;
5. examine the applicable internal rules;
6. hear the employee's explanations;
7. search for any comparable facts that were previously tolerated;
8. measure the damage and disruption caused;
9. choose a proportionate sanction;
10. strictly adhere to the disciplinary procedure.

When the facts involve a criminal, competition, IT or data protection dimension, a coordinated analysis may be necessary.

ARST Avocats' support

ARST Avocats assists companies in preventing and addressing the misuse of working time and professional resources.

Our intervention may include, in particular:

• the drafting or updating of the internal regulations;
• the implementation of an IT charter;
• the conformity of the control devices;
• conducting an internal investigation;
• analysis of the available evidence;
• the choice of sanction;
• securing a disciplinary dismissal;
• the defense of the company before the labor court;
• the handling of criminal or unfair competition aspects.

Our team intervenes more broadly in social law and labor law, both in advisory and litigation matters.

The use of work time for personal purposes does not therefore call for a one-size-fits-all response. Reasonable tolerance must be distinguished from abusive, disloyal, or organized behavior. The sanction will always depend on the nature of the facts, their extent, the employee's role, internal rules, and the circumstances under which the evidence was gathered.

Frequently asked questions about the personal use of work time

Can an employee access the internet for personal purposes?

Yes, occasional and reasonable use is generally tolerated, unless prohibited by the duties performed, safety requirements, or internal rules. Excessive use, however, may be penalized.

Can an employer ban mobile phones?

A prohibition may be imposed when justified by security, confidentiality, the nature of the tasks, or the proper functioning of the company. A general prohibition must remain proportionate.

Can the employer access the employee's internet history?

The employer may monitor the use of professional equipment in compliance with the rules of information, proportionality, and protection of personal data. The procedures for monitoring must be clearly defined.

Can an employee be dismissed for managing their business during working hours?

Yes, if the activity is sufficiently established and substantial. Engaging in a personal, paid activity, especially a competing one, during working hours can justify dismissal, possibly for serious misconduct.

Does any personal use of work time constitute a breach of trust?

No. Criminal charges are reserved for serious acts that meet all the elements constituting an offense. A one-off personal activity is, at most, subject to disciplinary review.

What is the timeframe within which the employer must act?

The disciplinary procedure must in principle be initiated within two months of the date on which the employer had sufficiently precise knowledge of the facts.