Published on :
23/12/2020
23
December
Dec.
12
2020
In the digital age, and when the activity of the company makes it necessary, the employer makes available to the employee the computer equipment for the needs of the execution of his missions.
But new technologies are also sources of difficulties: unfair competition, computer failures, use by employees for abusive purposes or contrary to the interests of the company, are not excluded.
In case of suspicion, the employer can have recourse to a judicial officer to draw up a computer report.
Whatever the nature of the dispute with which the company is confronted, in IT matters, only a report made by a ministerial officer can be opposable to the party who committed an offense, or failed to meet one of its obligations. The official report is the act which guarantees the authenticity of a situation.
This is all the more the case in terms of sanctioning an employee who uses computer tools in a roundabout way (use for private purposes during working time), where the computer report will mention the content. computer data, showing, if this is the case, their irregularity.
There is a presumption in labor law that the IT tool made available to the employee by the employer is of a professional nature, except for documents or files identified as being private by the employee.
As soon as the elements are presumed to fall within the professional sphere, the judicial officer can establish a report of their content, even in the absence of the presence of the employee.
Conversely, concerning computer elements identified as being private, the judicial officer will be able to draw up a report, on condition of being provided with an order issued by a judge.
The computer report established by a judicial officer is also useful if the company is targeted by acts of unfair competition or counterfeiting, carried out via the internet and will again constitute solid evidence, if legal action is taken.
The observation is then made mainly by a description of the facts by the bailiff with screenshots if necessary, but technical prerequisites must however be respected:
- Prior to the observation, the caches must be emptied and the cookies, temporary files and browsing history must be deleted;
- If the equipment has a proxy, it must be deactivated;
- The report must mention the IP address of the computer;
It being specified that there is an AFNOR standard (n ° Z 67-147) concerning the operating mode of the report on the Internet made by a bailiff, to which the officer can refer.
Finally, the IT report in business is also useful in the event of failure of a computer component or a software type tool, etc …
The report then makes it possible to fix the proof of the anomaly in order to obtain repair within the framework of an amicable agreement with the supplier, if not via an action brought before the competent court.
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