Employees increasingly have internet access in the workplace. It is necessary in part for work performance. However, it can become problematic when an employer considers the extent to which private internet use is permitted during working hours or restricted and controlled. Existing case law demonstrates employers' options in the case of employee breaches.
Since the Federal Employment Court's 2005 landmark decision,(1) the rule has been that in the absence of the employer's permission or tolerance, private internet use is not generally allowed. Employees are obliged to perform their work tasks during working hours and are in breach of this duty in the case of private internet use because remuneration is received for these times without relevant quid pro quo. On the other hand, if the employer allows its employees private internet use, it does not follow that employees have carte blanche for limitless online surfing. Use must be kept within a reasonable scope and must not interfere with employees' work performance. Accordingly, employees are not permitted to surf online extensively during working hours, irrespective of the online content. Further, downloading a considerable quantity of data onto company data systems is inadmissible. Moreover, downloading material that is relevant under criminal law, particularly material with pornographic content, is not permitted as this can damage the employer's reputation.
In the event of unauthorised private internet use, the employer has three options:
- an official warning;
- ordinary dismissal on grounds of conduct; and
- termination without notice.
How these are applied will depend on the individual case.
All three options require a breach of duty on the part of the employee as a starting point. Generally, the ultima ratio principle applies. This principle considers that in the case of disturbances in the employment relationship, dismissal should be considered only as a last resort. Before notice of termination is given, employees must have been issued with an official warning concerning their conduct contrary to duty. It should be made clear to employees that their conduct represents a breach of their contractual duties and that in the case of repetition employees will be dismissed. Exceptionally, prior warning can be dispensed with if the employee should have known that his or her conduct represented a breach of duty so considerable that the employment relationship would be jeopardised, even if it has not been pointed out expressly by the employer. This is particularly the case when there are serious and obvious breaches. In this case, the employer can opt for immediate ordinary and extraordinary termination. Extraordinary termination without notice comes into consideration only in particularly serious cases. In this respect, it depends on whether the employer can be reasonably expected to uphold the employment contract until expiration of the notice period.
Both ordinary termination and termination without notice require the weighing up of interests if grounds for termination exist. Termination comes into consideration only if – on grounds of a final weighing up – the employee's interests do not outweigh the continuation of the employment relationship. The following must be taken into account:
- the severity of the breach of duty;
- the employee's age;
- any maintenance obligations;
- the existing job market; and
- the length of the undisturbed history of the employment relationship.
Breaches of duty through private internet use keep employment courts busy. The Schleswig-Holstein Regional Employment Court recently ruled on a case of excessive private internet use by a 46-year-old family man who was given notice of ordinary termination without prior official warning after 21 years of work without problems.(2) The employee had downloaded a considerable quantity of data onto his work computer, in part from internet platforms with an increased virus risk. As a result, delays occurred in data transfer at the workplace. The exact duration of such private use was unable to be reconstructed as the employee had deleted the browser history. However, it was known to be considerable due to the volume of data downloaded. The employee disputed extensive internet use without commenting on the details.
The court held that the ordinary termination of the employee without prior warning was justified. Based on the circumstances, extensive internet use for private purposes was documented. In the court's view, it was non-prejudicial that the exact temporal history was no longer reconstructable. Owing to the immense volume of data and the fact that the employee had deleted the browser history, he was unable to restrict himself to a simple dispute. Instead, he would have to have demonstrated approximately the duration of his private internet use and that it had not impaired his work performance. Since the employee had not demonstrated this, extensive internet use adversely affecting work performance had to be assumed, such use being capable of justifying the employer's notice of termination.
In another case, summary notice was deemed effective because the employee verifiably wrote private emails for a number of hours a day over a period of several weeks in each case. The duration of such use was so extensive that it was impossible for the employee to perform his work properly.(3) An important reason for summary notice can also be the unauthorised installation of anonymisation software on a company computer to cover up private internet use.(4) Cases that are capable of damaging the employer's reputation because of criminally relevant acts committed by the employee and that have led to investigations can result in termination without notice. However, the Federal Employment Court emphasises that in this case a final weighing up of interests must be performed.(5)
To facilitate the verification of a breach of duty, it is recommendable to issue clear instructions on private internet use. This can take place by way of guidelines or – provided that a works council has been established – through a works agreement. The employer is free to prohibit completely private internet use and private emails. In this case, the works council is not entitled to co-determination rights. If the employer permits internet use in part, the employer can impose temporal restrictions concerning the extent (eg, no longer than 30 minutes per day, during lunch breaks only). The employer can also issue requirements concerning website content (eg, no social networks, only news websites) or downloading, stating a maximum data volume. Possible co-determination rights of the works council under Article 87(1)(1) of the Works Constitution Act must be taken into account.
Irrespective of whether the employer allows private use, the employer must observe the personality right of the employee and the co-determination right of the works council (Article 87(1)(6)) when monitoring internet and email use. Comprehensive control is inadmissible. Random checks of internet history and email use are possible if a relevant works agreement exists or if the employee has consented by way of individual agreement. The employer is free to make the option of private internet use conditional on the issue of such consent. Control in the case of specific indications of employees' breaches of duty is permitted, even without regulation, by way of individual agreement or in terms of works constitution legislation.
Even if private internet use is permitted or such use is tolerated, carte blanche for unrestricted surfing does not follow. Private internet use must be commensurate and may not harm the employer's business interests. As penalty options, official reprimand, ordinary termination and summary notice are available. Depending on the individual case and according to case law, ordinary termination of the employment relationship comes into consideration without prior reprimand. This is the case in particular if the considerable temporal scope permanently impairs work performance or the employee endangers the employer's operating resources or reputation through comprehensive or legally dubious downloads. If the employer wishes to ensure that no disproportionate private internet use is taking place, rules concerning this should be made by works agreement or individual agreement. Moreover, the employer must ensure that a review is possible.
For further information on this topic please contact Bjoern Gaul, Merle Knierim, Daniel Ludwig or Bernd Roock at CMS Hasche Sigle by telephone (+49 221 7716 195), fax (+49 221 7716 252) or email (firstname.lastname@example.org, email@example.com, firstname.lastname@example.org or email@example.com). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.