Problem
It is not uncommon for employers to suspect that individual employees are deceiving them about their working hours. Such working time fraud, i.e., the deliberate manipulation of working time records, gives the employer the right to terminate the employment relationship without notice (Section Section 626 (1) BGB). Classic examples of working time fraud include false entries in timesheets or the misuse of time clocks. In many cases, however, employers have no solid evidence of working time fraud, only concrete suspicions.
Current decision of the Cologne Regional Labor Court
In a recent decision, the Cologne Regional Labor Court (Ref. 7 Sa 635/23) dealt with the question of whether an employer may take surveillance measures to uncover suspected working time fraud and demand reimbursement of the detective costs incurred for this from the employee.
Facts
In this specific case, a ticket inspector was suspected, based on statements made by employees, of engaging in leisure activities during his stated working hours. The employer then commissioned a private detective agency to monitor the inspector, which confirmed the suspicion. The employee was then dismissed without notice. In addition, the employer claimed reimbursement of the detective costs incurred in the amount of approximately €21,000.00 from the employee.
Reasons for the decision
The Regional Labor Court ruled that the termination without notice was valid. It considered it proven that the employee in question had deliberately deceived the employer about his working hours. The employer had investigated this matter in a legally permissible manner by engaging the services of a detective agency. The LAG assessed such action as permissible under data protection law in the presence of (concrete) grounds for suspicion and based this assessment on the provision of Section 26 (1) sentence 2 of the Federal Data Protection Act (BDSG). According to this provision, the surveillance measures must be proportionate to the seriousness of the employee's suspected misconduct and necessary for clarifying the circumstances. In addition, the relevant evidence must be sufficiently documented.
The court also rejected a ban on the use of evidence, since although there was an infringement of the employee's general right to privacy and right to informational self-determination, the infringement was only of "low intensity." The surveillance measures only related to working hours, took place in public spaces, and lasted only a few days.
In addition, the Regional Labor Court awarded the employer a claim for damages against the employee. The prerequisite for such a claim for damages is, in particular, that there was an objectively justifiable concrete suspicion that made it necessary to initiate surveillance measures against an employee.
Conclusion and recommendations for action
If there is concrete suspicion of wrongdoing, employers can, in individual cases, have an employee monitored by a detective in order to clarify the facts. Employers can reclaim the costs incurred for the surveillance from the employee by way of a claim for damages. However, it is essential to ensure that the surveillance measures taken are limited to what is necessary in terms of duration and intensity.
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.