Outlining the legal limits of employee surveillance when employees are suspected of pretending to be ill.
In a judgment given on 19 February 2015 the Federal Labour Court (Bundesarbeitsgericht – BAG) decided that the observation of a female employee who was suspected of taking time off sick when she was fit to work was illegal. The Court found that as a consequence she was entitled to damages.
In the case being decided on the claimant, a secretary to the management board, was unable to work for several months. She had provided her employer with several doctor’s notes confirming that she was unable to work, the first of which were issued by a GP and later on by an orthopaedic specialist. Due to the fact that she had submitted certificates from several different doctors confirming her incapacity to work and because the slipped disc reported by the claimant had at first only been treated by a GP, the employer’s director suspected that the claimant may be taking time off sick when she was not actually ill. He therefore hired a private investigator who observed the claimant for several days and took pictures of her.
The grounds of this decision by the Federal Labour Court are no particular surprise since they arise directly from section 32(2) sentence 2 of the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG). This states that an employee’s personal data may only be processed in order to uncover criminal offences if there are documented reasons to believe that the person concerned has committed a criminal offence while employed, the data processing is necessary to investigate the offence, this is not outweighed by the employee’s legitimate interest in excluding data processing and, in particular, that the nature and extent of the processing are not disproportionate to the suspected misconduct.
Ultimately, this means that a test of proportionality has to be carried out beforehand in each situation. Above all, an investigation is only allowed if specific reasons exist which point to misconduct on the part of the employee. These reasons must be set out in writing before the investigation is started. This is where the employer failed in the case at issue:
A mere suspicion of misconduct that is not based on verifiable facts is not a sufficient reason for carrying out an investigation. In such a situation it is highly likely that the employee will also be entitled to damages on account of the breach of their personal rights.
However, employers are not defenceless either if they suspect that an employee may be guilty of taking time off when they are not actually sick, even if there is – at that point – no actual evidence to support this. Employers can call on the medical service of the relevant health insurance company to have an independent medical examiner look into whether the employee is fit for work or not. Besides this, the possibility of requiring the employee to provide a doctor’s note on the first day of sickness is something employers should look at more closely. Experience shows that both methods help to encourage employees to behave more honestly.
Nevertheless, the Federal Labour Court’s decision is noteworthy: While the Federal Labour Court has once again clearly highlighted the limits set out in section 32(2) sentence 2 German Federal Data Protection Act in its decision, it is also apparent that the labour courts have increasingly had to deal with the subject of data protection over the past few years. This means that the day-to-day application of data privacy law, which for the most part makes use of provisions that are highly dogmatic and imprecise, will become somewhat more predictable for employers and employees alike. This predictability has often been lacking in practice. The reasons for this are, on the one hand, that data protection authorities are often not able to do full justice to their tasks due to insufficient personnel and other resources. On the other hand, the project involving the development of a data protection act relating to employees that has been the subject of discussions in Germany since 2009 but was not finalised because of a dispute between the conservative CDU/CSU and liberal democrat FDP parties on the subject of video surveillance during the last legislative period is still outstanding. The General Date Protection Regulation currently under discussion is also unlikely to turn water into wine.
Thus we can only hope that the national legislator will at last embrace the topic of employee data protection, which is so important in practice, by providing a clearer legal framework.
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