In its ruling of July 27, 2017, the second senate of the Federal Labor Court decided (case no. 2 AZR 681/16) that data obtained from a keylogger may not be used in the context of legal proceedings.
As a result of the decision, an employee did not lose his job even though he had demonstrably committed working time fraud.
Working time fraud through private use of the company computer
The employee was employed as a web developer.
During his working hours, he often used the company computer for private purposes.
This included doing work for his father’s logistics company on the company computer and also programming a computer game.
In principle, frequent private use of the company computer during normal working hours can justify extraordinary dismissal.
This is because the employee is in breach of their duty to make their work available to the employer.
However, the employer must prove this if they wish to terminate the contract without notice.
Employees monitored by keylogger
In order to be able to monitor the employees, the employer recorded all activities on his employees’ computers.
To do this, it installed a so-called keylogger on its employees’ company computers.
This software is able to record all keystrokes and take screenshots at certain intervals.
It was relatively clear from these records that the employee used the company computer almost predominantly for private purposes during his working hours.
He only rarely carried out his work as a web developer.
The employer confronted the employee.
In his defense, the employee stated that he had only spent 10 minutes a day programming the computer game.
He had also always done the work for his father’s company during his lunch break.
The employer did not believe him and dismissed him without notice, or alternatively dismissed him with notice.
The dismissed web developer took legal action against this and has now been proven right in all instances.
Prohibition of utilization of the keylogger recordings
Like the Herne Labor Court and Hamm Higher Labor Court, the Federal Labor Court has now also come to the conclusion that there was a prohibition on the use of keylogger recordings.
As a result, the employer was unable to prove that its employee had violated working hours, which meant that the extraordinary dismissal lacked evidence of working time fraud.
Keyloggers interfere with the general right to privacy and the right to informational self-determination
The use of such keylogger recordings constitutes an infringement of the right to informational self-determination and the general personal rights of employees.
§ Section 32 para.
1 BDSG only allows the employer to interfere with the general personal rights of its employees if there is a concrete suspicion of a criminal offense or other serious misconduct to the detriment of the employer.
Even then, the use of a keylogger is only permissible if there is no less drastic means of clarification and all other measures have been exhausted.
In addition, the use must also be proportionate and the only remaining means of investigating the working time fraud.
However, the employer’s assertion that his employee “quickly clicked something off” when he came into the room and took a look at the computer was not sufficient to justify such a suspicion.
As a milder means, it was also possible in this case to prove the violations by evaluating the computer data in the presence of the employee.
Therefore, there was no serious reason for the use of the keylogger and it was disproportionate.