So, what happened?
The employee, who had been with the employer since 1998, had received a work computer from the employer for use exclusively for work purposes. Use of the work computer required the entry of a personal password. The employer was informed by another employee that the terminated employee very frequently used it to surf the Internet. The employer took this opportunity to first monitor the volume of data involved in the employee's activities and found it to be significantly greater than average.
The employer then monitored the terminated employee's use of his Internet browser for a period of 30 working days without informing him. It identified a total of 16,369 page views. An average surfing time of 10 seconds per click was recorded. A total of 39.86 hours of private Internet use during working hours over the monitored period was noticed. The pages accessed by the terminated employee had no possible professional connection (e.g. dating sites or pornographic pages).
The employer thereupon immediately and extraordinarily terminated the employment relationship on the basis of the results of the browser monitoring.
Excessive private Internet use as a reason for termination
The Berlin-Brandenburg LAG found that the employee's behavior presented a valid reason under Sect. 626 para. 1 BGB (Civil Code) and that the extraordinary termination without notice was justified. The terminated employee had made excessive private use of the Internet provided by his employer during working hours over the period of 30 working days. This was sufficient grounds for extraordinary termination. By making private use of the Internet during working hours, the employee fundamentally breached his principal obligation to work on behalf of the employer since private use of the Internet may affect the provision of the contractually-owed services to a not insignificant extent. According to the Berlin-Brandenburg LAG, nearly 40 hours of private Internet use during working hours over a period of 30 working days was significantly in excess of what was acceptable.
No exclusion of evidence produced by the “secretly” assessed browser data
Contrary to the employee's position, the evidence “secretly” gathered by the employer, that is to say the examination of his Internet browser, was admissible and not subject to any exclusions. The court held that the code of civil procedure does not include any prohibition on the use of illegally acquired information or evidence. This despite the fact that the browser history did in fact represent personal data in accordance with Section 3 para. 1 BDSG (Federal Data Protection Act). In any case, Section 32 para. 1 sentence 1 BDSG allows the employer to collect and process (store) the information relating to the employee's Internet use from the browser history as well as to subsequently use and assess it. An employee's personal data may be collected, processed or used for the purposes of an employment relationship if required for decisions regarding the creation of said employment relationship or, after its creation, regarding its performance or termination. In this case the data collection occurred for the termination of the employment relationship. The assessment was carried out for the purpose of monitoring misuse, and therefore for the performance of the employment relationship.
Interesting in this case is the LAG's statement that the employee's agreement to the assessment was not necessary. The reason for that: The employee's presence during the assessment of the browser history by the employer would, in light of its purpose and the specific circumstances of the case, not have represented a lesser measure than that carried out “secretly”. The type and manner of the assessment would not have been any different had the terminated employee been present.
The court had one more interesting argument: the employer had no other possible means of demonstrating the misuse on the part of the terminated employee, for which reason it had to have this possibility of acquiring the evidence. A procedural exclusion of evidence in the event of the illegal acquisition of evidence would only apply if it encroached on the other party's constitutionally-protected rights, which is not the case here.
LAG: Employer not a service provider under Section 88 TKG (Telecommunications Act)
Finally, the Berlin-Brandenburg LAG ruled that the employer could not be considered a service provider under Section 88 TKG. It is well known that data protection authorities in Germany generally see this differently, meaning that it remains unclear from a data protection law standpoint whether an employer may monitor an employee's browser history without his knowledge or not. The Berlin-Brandenburg LAG's ruling is therefore not a blanket authorization to secretly monitor employee's browser histories, even if the result would be considered permissible as evidence by the court. The Berlin-Brandenburg LAG has permitted an appeal to the Federal Labor Court, meaning that a final ruling on this matter remains to be reached.
Recommendation for action
Until the matter is finally settled, employers are advised to establish clear regulations for the use of work computers, especially for private use of the Internet access and business e-mail accounts. These should particularly establish whether the employer's telecommunications systems are exclusively reserved for business purposes or (to what extent) they may also be used for private purposes. In light of the overwhelming opinion of data protection authorities that the employer in fact becomes a telecommunications service provider in the sense of the TKG if it permits private use, employers should (still) avoid private use without exception. If there is a works council, it should be involved in establishing the scope of use and clear regulations for the monitoring of performance and behavior. This will help the employer to avoid unpleasant conversations with the works council regarding the scope of existing co-determination rights when carrying out internal investigations.