Many employees are unaware that they may face instant dismissal without prior warning even if their employer has not explicitly prohibited internet use.
In a judgment dated July 7, 2005, the Federal Labor Court ruled that employees may face instant dismissal even without their employer's express prohibition if they use the Internet at work for private purposes. The employee is guilty of a significant breach of duty simply by not performing his or her work obligations as set out in the employment contract while surfing the Internet. This breach of duty is all the more serious the more the employee neglects his or her work obligations in terms of time and content when using the Internet for private purposes. If the use is repeated and excessive, it is a "fundamentally suitable reason" for an extraordinary termination, which can justify an extraordinary termination without a warning.
According to the case law of the Federal Labor Court, a written warning can be dispensed with because an employee who uses the Internet privately for a considerable amount of time during his working hours may not, as a matter of principle, trust that the employer will tolerate this. The employee must expect that the employer will not agree to the employee not performing his work during this time and nevertheless claiming corresponding remuneration for it. This also applies if the employer has not established any clarifying rules of use for the company, because in the absence of the employer's express permission or tolerance, private use of the Internet is generally not permitted. According to the Federal Labor Court, it must be clear to every employee that excessive use of the Internet during working hours constitutes a significant violation of their primary and secondary employment obligations. For this reason, no written warning is required in such cases.
Other significant breaches of duty in this context may consist of the fact that the internet use causes additional costs for the employer and/or significant amounts of data are downloaded from the internet to company data systems (especially if this may result in the risk of possible virus infections or othermalfunctions of the operating system) or if a tracing of the data can lead to a damage of the employer's reputation, for example because criminal or pornographic content is downloaded.
Even if there is an important reason for an extraordinary termination "in itself", the effectiveness of the termination ultimately depends on a comprehensive consideration of interests. In this context, all the circumstances of the individual case and the interests of the employer and the employee are weighed against each other. In this regard, it is examined whether or not it is reasonable for the employer to continue the employment relationship, taking into account the specific circumstances of the individual case and weighing the interests of both parties. The severity of the employee's breach of duty, the duration of the (otherwise undisturbed) employment relationship and the employee's position in the company are of decisive importance in this context.
Unfortunately, the Federal Labor Court has not yet provided any reliable indications as to the length of time for which private internet use alone is sufficient to justify termination without warning. As a result, there is a great deal of legal uncertainty for both employers and the employees concerned. In order to create legal certainty for employees and employers, it is advisable to draw up explicit rules for Internet use, which precisely define whether the Internet may be used privately by employees at all and, if use is permitted, to what extent this is allowed.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.