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Top German court limits spying on employees

Gabriel BorrudFebruary 19, 2015

A secretary on sick-leave for two months who was spied on has won a suit against her employer in Germany's highest labor court. The ruling defines when detectives can be used to monitor employees.

Image: picture alliance/Arco Images

Only under very limited circumstances can German companies spy on their workers, said judges of the Federal Court of Labor on Thursday, in a case that weighed a complaint by a secretary who claimed she had been unlawfully spied on.

"Only when an employer's suspicions of a breach of duty are concrete and based on fact can a detective be used to monitor an employee," the judges in Erfurt said on Thursday.

Specifically, the judges said that the secretary - who had been on sick leave - at a small metal parts plant in the western German city of Münster had been unlawfully spied on; her boss, they said, hadn't possessed concrete justification for hiring a private detective to determine the veracity of her claims.

The judges also objected to the use of video footage in such spying endeavors, calling it an unnecessary breach of privacy. The plaintiff's demand for 10,500 euros in compensation, however, was rejected. An earlier ruling that granted the secretary 1,000 euros in punitive damages was confirmed as adequate.

Long time coming

"Thursday's ruling is fundamental, because we now have clarity on how German employers can proceed with regard to the contentious issue of surveillance," said Eugen Ehmann, a legal expert who specializes in data protection within companies and agencies.

"Every employer has the right to be suspicious, and rulings already existed that provide a clear context for when that employer could consult a private investigator," Ehmann explained. But until now, German federal law desperately needed an update with regard to whether recordings or photos can be made undercover, he added.

"There are legal norms in Germany for the question - 'Am I allowed to take a picture of another person in public' - but they are simply antiquated. The decisive norm that we have today dates back to 1908. Let me repeat myself: 1908."

Office, then court drama

The Münster secretary case all began at the end of 2011, when the 50-year-old and her boss had a dispute over her performance at work. Two weeks after the dispute and just a few days before the end of the year, the secretary called in sick with a herniated disk.

Her boss quickly became suspicious that the secretary was faking it, so he contacted a local private investigator to confirm his suspicions. On four different occasions, the investigator followed the secretary through her daily routine on sick leave. Video recordings were made of her in front of her house, walking down a sidewalk, bending over to pet a dog, and lastly carrying her wash at a laundromat.

Deutschland Essen Waschsalon Wasch-Center
Recordings were made in front of the secretary's home - and in a laundromatImage: picture-alliance/dpa/O. Stratmann

Her boss fired her immediately upon seeing the footage, and a legal battle has been going on between them ever since. When she found out she had been spied on, she took her boss to court to challenge her dismissal - and to get compensated for what she called a "gross invasion of her privacy."

The secretary has already won her claim in two other courts. The first suit, dealt with by a municipal labor court, ruled that the secretary had been fired illegally. Her boss hadn't possessed what the judges called "sufficient concrete suspicion" to hire the private investigator. The court dismissed her demand for punitive damages, saying her personal space hadn't been invaded.

The second suit, waged at a state labor court, focused solely on punitive damages resulting from breach of privacy. This time, the judges ruled that the secretary's privacy had been invaded, and they asked her employer to pay her 1,000 euros in compensation. That wasn't enough for the secretary; she had been asking for 10,500 euros - three gross monthly salaries.

Symbolbild Spionage Überwachungskamera
'Truly worrying' are the surveillance cameras at work that aren't even cameras, said EhmannImage: Fotolia/darknightsky

Tough day for detectives

Thursday's ruling, however, won't only affect the secretary and her boss. German private detectives already had it tough enough, according to one leading private investigator.

"Within the law, it is demanding to prove that an employee is acting fraudulent," Christian Melzer, managing director of Germany's nationwide Adecta private investigation firm, told DW. He said that with the increasing prevalence of mental illness, for instance (which accounts for over 11 percent of all sick days in Germany, up from two percent 10 years ago), proving that workers are faking sick is becoming even harder.

"Labor laws here state that any person on sick leave must do everything in their power to get better," Melzer explained. "But how should one prove that an employee written off for burnout syndrome isn't actually suffering from burnout - or trying to get better?"

Although labor unions have long complained of a "growing trend" of employee surveillance, Melzer dismissed claims that spying assignments on "sick" workers were common.

Eugen Ehmann concurred. "We cannot call this a 'growing trend' yet. Suspicion that workers on sick leave are faking it may be widespread. But calling up a detective to confirm that? That's an isolated practice," he said.

With regard to the surveillance of workers at work, however, Eugen had other convictions: "There is no doubt that we are confronted with a growing trend of surveillance. And the worrying part is that it has little to do with security. We are hearing more and more about fake cameras being set up in companies simply to make employees feel observed, that 'Big Boss' is there watching. That is truly worrying indeed."