Employee monitoring and right to privacy.

 Claims against the employer for compensation (Higher Labor Court Rhineland-Palatinate, decision dated April 27, 2017 – 5 AZR 449/16).

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Arbeitnehmerüberwachung und Persönlichkeitsrecht, Insight, Buse Heberer Fromm

The covert monitoring of an employee by a detective can trigger an entitlement to compensation due to breach of the general right to privacy. The amount of compensation is the result of a consideration of the specific merits of the case.

The respondent employer harbored the suspicion towards the complainant employee that he had committed time card fraud due to a part-time job. The employer hired a detective agency to investigate. The detective observed the employee exclusively during working hours, but did not investigate areas of his private life. In special, no photographs, movement profiles etc. of the employee were prepared. The observation extended over a period of approximately six weeks at a total cost of € 39,197.85. After the employee received an anonymous tip concerning the observation commissioned by the employer, he sued the employer for payment of compensation due to breach of his general right to privacy.

The Higher Labor Court of Rhineland-Palatinate found in favor of the complainant and awarded the complainant compensation in the amount of € 10,000.00. It based this entitlement to compensation on sec. 823 para. 1 Civil Code (German BGB) in connection with the general right to privacy per Art. 2 para. 1 in conjunction with Art. 1 Constitutional Law (German GG) and Art. 8 para. 1 ECHR. Whether a breach of the general right to privacy exists of a sufficient severity to justify compensation depends on the individual circumstances of the case. The Higher Labor Court concurred, citing that the covert observation of the employee extended to 20 working days and was initiated by the employer without sufficient accusation of wrongdoing. By contrast, the fact that the observation only extended to working hours was irrelevant.

In determining the amount of compensation, the Higher Labor Court based its decision on the criterion that the employer had invested a medium five-figure amount in the observation. In relation to this, the monetary compensation is intended to be of such a level that a genuine deterrent effect is achieved. Decisive to the amount of compensation are the concept of restitution of the person whose rights were breached and prevention of such legal breaches in the future.

Recommendation for practice:

The individual judgment of the relevant circumstances of the observation leads to extreme divergence in the amount of compensation awarded from case to case. And this is often beyond what is intuitively obvious to the employer: In the only other decision published so far by the Federal Labor Court concerning this type of compensation after an observation, a ruling provided for compensation in the amount of € 1,000.00 for observation of four days, although the employee being observed was even photographed and filmed in his own area of privacy. These circumstances did not pertain to the constellation to be decided by the Higher Labor Court (Federal Labor Court, decision dated February 19, 2015 – 8 AZR 1007/13). Add to this an additional uncertainty: Entitlement to compensation due to invasion of the general right to privacy is often considered out of the question or unlikely if the observation is restricted to the work area. The decision at hand by the Higher Labor Court demonstrates that this definitely does not apply in all cases, and even after an observation without extension to the subject’s private life, employers may be faced with considerable compensation payments. It is all the more necessary for employers to diligently prepare an observation by investigation of a sufficiently concrete initial suspicion and then to only extend this to the area necessary for the observation.