The German Federal Labor Court ruled that an employer who assigns a private investigator in order to commence surveillance of an employee who is under suspicion of simulating sickness is acting unlawfully if his suspicion is not based on specific facts. The same is applicable for pictures secretly taken alongside this surveillance. Employee observation can only be justified if founded upon explicit reasons, for example, theft. This unlawful violation of the general right of personality can be the foundation for financial compensation ("compensation for injuries suffered").

The claimant was employed with the defendant as a secretary to the management. After fewer than seven months of employment, the employee had several disagreements with her superiors. Soon after she became incapacitated for work, starting with a bronchial affection. From that time, she provided six consecutive incapacity certificates to her employer, four of them from a general practitioner, two of them, from an orthopedic specialist. The general manager of the defendant had doubts about the claimant's disability to work which she informed him about by phone and therefore tasked a private investigator to observe the employee.

The observations took place on four days. Amongst others, the investigator monitored the claimant's house, herself and her husband alongside their dog in front of the house and the claimant's visit to a self-service laundry. During these observations, video recordings were produced. The report submitted to the employer by the private investigator contained eleven pictures, nine of them taken from the video sequences. The photos as well as the video show the plaintiff moving in a way that contradicts her disease pattern.

The claimant considered the tasking of the investigator to be unlawful and demanded compensation for injuries suffered. She considered €10,500 to be a reasonable amount. The claimant claims to have suffered substantial psychological damage in need of medical attendance.

The Regional Labor Court had admitted the claim in the amount of €1,000. The appeals of both parties before the German Federal Labor Court remained without success. The observations, including the video recordings, were unlawful since they were only founded upon speculations. The employer had no rightful cause for taking up surveillance. The legal relevance of the incapacity certificates was open to question neither by the fact that they had been issued by two different medical practitioners, nor by the change of the disease pattern.

Practical Tip:

Employers should be careful when considering monitoring employees on sick leave. The German Federal Labor Court has set strict limits that should be respected in order to avoid compensation claims. However, if the suspicion that the employee is not incapacitated for work can be based on substantiated facts and not only on speculations, surveillance – e.g. via a private investigator – is still possible.

Case No.  8 AZR 1007/13

Date: 18 Feb 2015