international employment law firm alliance L&E Global

Germany: Permitted private use of workplace recourses – accessing private messages of employees

In the case at hand, the employer terminated the employment of one of his employees after obtaining information from a concealed investigation into private conversations conducted by the employee via the e-mail service and smartphone provided by the employer.

In the following litigation the Regional Labour Court Baden-Württemberg found that the termination was invalid because the information obtained constituted inadmissible evidence:

Because of the permitted private use, the employer would have needed to inform the employee before accessing any data within the communication system provided, so that private messages could be stored by the employee outside of accessible folders. The unannounced access constitutes a violation of the employee’s constitutional rights, e.g. right to privacy and informational self-determination. This results in the processing of the data being unjustified and thus illegal, according to Sec. 26 (1) of the German Federal Data Protection Act (BDSG).

Furthermore, the court awarded a compensation of EUR 3,000.00 pursuant to Art. 82 (1) GDPR to the employee. The sole violation of a data protection provision would not be sufficient to justify this. However, in the present case the employee had lost control over his data, private messages to his brother and friends were processed by the employer over an extended period of time and presented in the court room. Together with the threat of losing his job, this led to immense tangible as well as intangible consequences that the court found the employee needed to be compensated for.

Practical Point

  • If only work-related use of the employer’s communication systems is allowed, the employer can access data far more easily than if private use is permitted or tolerated.
  • Employers who allow or tolerate private use must be cautious when considering accessing the employee’s data.