Monitoring an employee using a keylogger is only permissible if there are reasonable grounds for suspecting that an offence or a serious breach of duty has been committed. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court.
A lot of workplaces are equipped with a computer, with this tempting employees to make use of the work computer for private purposes. This also often means that the working hours owed under the employment contract are used for private purposes to the detriment of the employer. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that there are limits to an employer’s ability to carry out surveillance, as the employee’s right to control and protection of data pertaining to him needs to be respected.
In its ruling of July 27, 2017, the Bundesarbeitsgericht held that the use of keylogger software recording all keystrokes on a work computer for the purposes of monitoring an employee is not acceptable in the absence of specific circumstances giving rise to reasonable suspicion that an offence or some other kind of serious breach of duty has been committed (Az.: 2 AZR 681/16).
The facts and circumstances informing the judgment were as follows: an employer had installed keylogger software on his work computers. This software recorded all keystrokes and took screenshots at regular intervals. The employer informed its employees about this. In the case of one employee, the recordings revealed that he had made considerable use of his work computer for private purposes. The employee in question admitted to having made only minimal use of the computer for private purposes and mostly during breaks. The employer issued notice of dismissal with immediate effect as well as ordinary notice of dismissal in the alternative.
The action for wrongful dismissal was successful, including before the courts of lower instance. The BAG ruled that the data collected by means of the keylogger could not be utilized. It went on to say that by recording the data, the employee’s right to control and protection of data pertaining to him had been infringed, since there had been no grounds for suspecting that an offence or a serious breach of duty had been committed justifying the employer’s use of the software. The Court therefore concluded that the surveillance had been disproportionate.
The BAG noted that while the employee had admitted to making private use of his work computer, the employer needed to have issued a formal warning before notice of dismissal.
Before issuing exceptional notice of dismissal, employers need to assess whether less severe measures would suffice to prompt the employee to change his behaviour. Lawyers who are experienced in the field of employment law can advise employers.
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