Many enterprises use instant-messaging programmes to make it easier for their employees to keep communication channels and times to a minimum. In business practice, for a variety of reasons employers are frequently keen to inspect and use chat protocols in court in unfair dismissal proceedings based on an employee’s conduct. Because of the criminal legal relevance of accessing chat protocols, this will hardly be possible.
The Regional Labour Court of Hamm has now ruled by judgement dated 10 July 2012 (14 Sa 1711/10), however, that chat protocols are not prohibited from being admitted as evidence in unfair dismissal proceedings even if the chat protocols stored on a works computer have been unlawfully obtained. In the underlying case, employees had sold company property on the internet. This act could exclusively be proven through the chat protocols. The decisive factor for the Regional Court of Hamm in its decision whether or not to admit the evidence was the manner in which the enterprise had permitted its employees to use the instant-messaging service. In this connection, the enterprise had inter alia always pointed out that employees could not expect the confidential treatment of their personal affairs.
If evidence supporting contract-breaching conduct can be elicited via chat protocols, then guidelines for the use of instant-messaging services need to be reviewed on the basis of the decision of the Regional Labour Court of Hamm. However, one should not forget in this connection that the collection of data is still generally prohibited.