What happened?

An employee, an IT manager, had downloaded thousands of book, music, video and image files from the Internet during working hours, had saved them on the company computer and then burned them to hundreds of CDs and DVDs in circumvention of copyright. In its judgment of 15 July 2015 (2 AZR 85/15), the Federal Labor Court ruled that the employee’s summary dismissal was justified and was therefore valid.

Breaches of duty

From a labor law perspective, this case involves the following aspects:

  • Private use of work IT infrastructure
  • Impact of offenses committed by the employee in the private domain on the employment
  • Working time fraud

In essence, the private use of the employer’s IT requires the latter’s consent. This consent may be explicitly granted, such as by an agreement in the employment contract or in an agreement with the works council. However, implied consent is also possible if the employer knows about the actual private use of IT, e.g. through e-mail correspondence or private Internet surfing and tolerates this over a longer period. In that case, according to controversial views on the matter in case law and the relevant literature, this may even give rise to “company practice”, which the employer will have difficulty eliminating.

Limits of permitted IT use

Even if permission is granted for private IT and Internet use in the workplace, the consent of the employer is limited where the employee must be able to realize that the employer does not tolerate a certain degree and quality of IT and Internet use.

In the absence of usage rules, this is always the case where IT and Internet use has reached a level that impairs the employee's work performance. However, there are neither limits set by statutory law nor limits defined by case law. In the case decided by the Federal Labor Court, the employer did, however, investigate and determine that private Internet use during working hours took up many hours a month spread over several months. A reasonable employee cannot assume that an employer would tolerate such behavior. This already constitutes a major violation of employment contract obligations by the employee. In conjunction with the recording of working hours and any electronic recording of working time, such behavior may also be a criminal offense, because it may constitute “working time fraud” if the Internet is used for private purposes without "being clocked out" in the time-recording system.

Criminal liability?

The illegal downloading and duplication of copyrighted files (images, music, videos, audio books etc.) constitutes an offense by the employee. However, this usually occurs in the latter’s private domain, as the employee is not doing so within the scope of his/her employment duties. Also, the employer does not initially suffer any immediate damage.

As we all know, not every offense by the employee in the private domain has effects on the employment relationship. Nevertheless, the employer does not have to accept the use of the IT provided by it for work purposes for the commission of this offense. Nor can the employee assume that the employer would tolerate such behavior. Under no circumstances does the permission to use IT for private purposes cover illegal or even criminal acts by the employee.

Conclusion

The temptation to use the employer’s often very professional IT infrastructure for private purposes is strong. However, for the employee, it is also highly dangerous if the latter uses the IT provided by the employer for illegal purposes and to an excessive extent. This may, as the aforementioned judgment handed down by the Federal Labor Court highlights, even lead to termination of the employment (without notice).