In its ruling of June 29, 2017, the Federal Labour Court (case reference: 2 AZR 597/16) ruled that an employee may be monitored by a detective if there is a concrete suspicion of a serious breach of duty based on facts.
Contrary to the LAG’s opinion, the surveillance was permissible after all.
Employer has employee monitored by detective
The defendant is a metal processing company that manufactures stamping tools and molds.
One of its employees had been working in the production of stamping tools and molds for over 30 years.
From 2014, he was on sick leave several times until he was finally unable to work continuously from January 2015.
He received his wages until the beginning of March 2015.
At the end of May 2015, the metal processing company learned that M GmbH – a company founded in 2013 by the sick plaintiff’s sons – was a family business that sold cutting dies and that the plaintiff had been assembling them for 38 years.
The employee is therefore alleged to have engaged in unauthorized competitive activity and only feigned illness.
These are serious allegations that may well justify dismissal without notice.
The metal processing company therefore approached its employee about the allegations.
However, the employee did not respond.
To clarify the matter, the company then commissioned a detective agency to investigate the suspicions.
After the metal processing company considered its suspicions to be well-founded even after the investigation, it dismissed the employee without notice in mid-June.
The action for protection against dismissal brought before the labor court was unsuccessful, but the Higher Labor Court upheld the action on appeal.
The main reason for this was that the court did not take the detective’s findings into account.
The surveillance by a detective was inadmissible.
In the appeal proceedings, however, the BAG overturned the decision of the LAG and referred the case back to the LAG for a new hearing.
Hiring a detective to monitor the employee may be permissible
The contested decision of the LAG is based on a legally incorrect application of Section 286 ZPO in conjunction with Art. Art. 2 (1), Art. 1 GG and Section 32 (1) BDSG.
Based on the LAG’s findings to date, it is not yet possible to conclusively decide whether the termination of June 2015 is effective.
Investigation result may constitute good cause for termination without notice
Contrary to the opinion of the LAG, there is no lack of good cause for termination without notice.
The conduct of which the plaintiff is accused, both the anti-competitive activity and the feigning of incapacity for work, are both in themselves suitable grounds for termination without notice for good cause.
However, the incorrect assessment of the LAG Baden-Württemberg (judgment of July 20, 2016 – 4 Sa 61/15) is based on the fact that the LAG did not take the results of the detective agency into account when gathering evidence.
The BAG takes a different view here.
Unlike the LAG, the BAG considers the detective investigations to be admissible after all, Section 32 para.
1 SENTENCE 2 BDSG.
Investigation only permissible if there is a “prior concrete suspicion based on facts”
According to § 32 para.
1 sentence 2 BDSG, investigations may be carried out on an employee – for example through the involvement of a detective.
However, only if this is necessary for the performance or termination of the employment relationship.
In this case, the detective’s findings should help to clarify a concrete suspicion of a serious breach of duty.
The termination without notice for good cause is only effective if this suspicion is also demonstrably justified.
It should also be noted that such an investigative measure is only permissible if a concrete suspicion based on facts already exists prior to the investigation.
Otherwise, the employer would be investigating “in the blue” and thus seriously interfering with the general personal rights of its employees.