Introduction

The Federal Labour Court recently ruled that an employer which engages a private investigator in order to commence surveillance of an employee suspected of faking illness is acting unlawfully if its suspicions are not based on specific facts (Case 8 AZR 1007/13, February 18 2015). The same is applicable for photographs taken secretly while under surveillance. Employee surveillance can be justified only if based on explicit reasons (eg, theft). This unlawful violation of the general right of personality can be the foundation for financial compensation ("compensation for injuries suffered").

Facts

The claimant was employed by the defendant as a secretary to the management. After fewer than seven months' employment, the employee had several disagreements with her superiors. She then developed a bronchial infection and became incapacitated for work. From that time, she provided six consecutive incapacity certificates to her employer (four from a general practitioner and two from an orthopaedic specialist). The defendant's general manager had doubts about the claimant's disability, which she had informed him about by telephone, and therefore engaged a private investigator to observe the employee.

The surveillance took place over four days. Among other things, the investigator monitored the claimant, her house, her husband and her dog in front of the house, and the claimant's visit to a self-service laundrette. During these observations, video recordings were produced. The private investigator's report contained 11 pictures, nine of which were taken from video sequences. The photographs and video showed the plaintiff moving in a way that contradicted her disease pattern.

The claimant considered the engagement of the investigator to be unlawful and demanded compensation for injuries suffered. She felt €10,500 to be a reasonable amount. The claimant claimed to have suffered substantial psychological damage which required medical attendance.

The Regional Labour Court admitted the claim to the amount of €1,000. The Federal Labour Court rejected the appeals of both parties. The court held that the observations, including video recordings, were unlawful since they were founded on speculation. The employer had no justification for carrying out surveillance. The legal relevance of the incapacity certificates was not at issue based on either the fact that they had been issued by two different medical practitioners, nor the change in the disease pattern.

Comment

Employers should be careful when considering monitoring employees on sick leave. The Federal Labour Court has set strict limits that should be respected in order to avoid compensation claims. However, surveillance remains possible if the suspicion that the employee is not incapacitated for work is based on substantiated facts, and not only on speculation.

For further information on this topic please contact Christopher Jordan or Pauline Moritz at CMS Hasche Sigle by telephone (+49 40 376 30 305) or email (christopher.jordan@cms-hs.com or pauline.moritz@cms-hs.com). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.

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