Termination without Notice Due to Private Internet Use

Private use of the business e-mail account and private use of the business Internet access despite a prohibition agreed in the employment agreement can justify a termination without notice. Inadmissibility of evidence is not applicable if the employer has acted in conformity with data protection regulations when exploiting the data, e.g. evaluating the history data.

Facts

An IT service provider terminated the employment relationship with an employee without notice. The reason was a working time fraud. The employee had been given a laptop to perform his work. During working hours, the employee used his business e-mail account and the Internet very extensively for private purposes. In addition to the employment agreement, the parties had concluded a separate agreement. According to this separate agreement, the employee was not allowed to use the Internet or the business e-mail account for private purposes. It was further agreed that the employer was allowed to exploit the laptop and the data to ensure that the employee complied with this prohibition. The employee wrote a lot of private e-mails from his work laptop in one day and used the Internet privately for an excessive amount of time. When the employer learned about that, it terminated the employment agreement without notice and had the laptop analysed. The analysis revealed significant violations of the ban on private use, with the result that on some days almost no work was done. The employee took action against the termination.

Decision

The Higher Labour Court of Cologne ruled that the termination was effective. It determined that working time fraud had occurred because the employee sent e-mails and visited Internet pages during his working time solely for private purposes. This breach of duty was even more serious because of the extensive private use and the contractual prohibition of private use. In addition, the Higher Labour Court provided important comments on the inadmissibility of evidence. Evidence may be inadmissible if the collection or use of data massively violates the employee's personal rights. Not every encroachment on personal rights leads to the inadmissibility of evidence. The court examined whether evidence was inadmissible in this case and weighed up the mutual interests including the personal rights and the right to produce evidence, whereby the personal rights took a backseat role to the employer's interest in enforcing its legal positions. Further, the data were "only" log file data, i.e. it showed which Internet page was visited and for how long. The Higher Labour Court used Section 26 (1) p. 1 of the German Data Protection Act as the legal basis but determined that the consent was invalid, since the employee's agreement did not meet the strict requirements of the General Data Protection Regulation. The use of data was necessary because there was no less severe and more effective means for the employer to prove the breach of duty.

Practical Consequences

The Higher Labour Court of Cologne has consistently implemented the stipulations of the Federal Labour Court (BAG) and employee data protection. It has drawn up practical guidelines for employers on how they can detect and punish serious breaches of duty.  Employers can issue effective terminations (without notice), even if general personal rights of the employees are affected. In advance, a balancing of interests should always be carried out in order to predict the chances of success of any legal action by the employee.

Practical Advice

The private use of the business e-mail account is a field that is prone to errors. If employers allow private use, they become legally active as telecommunications providers. This has considerable implications for data protection regulations A simple consent of the employee that the employer may also use the data for random control purposes is irrelevant if the employer wants to look into the e-mail account. This may become necessary, for example, if the employee cannot be reached or is suspected of having committed serious breaches of duty. Consent can only ever refer to the employee's part of the e-mail correspondence. The recipient of the employee's e-mails will never have given consent to the employer. Therefore, if an employer does not prohibit the private use of the employee's e-mail account, there are considerable risks associated also with accessing the business e-mail correspondence. Risks occur because the confidentiality of private communications if it is permitted would no longer be guaranteed. For this reason, it is advisable to prohibit the private use of the business e-mail account in order to avoid this situation.

If the private use of the Internet is also to be prohibited, which is also recommended, the exploitation of history data is permissible under data protection law and case law if used to monitor compliance with the prohibition. Employers should therefore contractually agree that private use is prohibited and for what purposes monitoring and exploitation may be carried out. If companies can resort to other means to prove abuse, data exploitation is ruled out. However, employers should generally refrain from consents to the use of data in the employment relationship. The obstacles for effective consent are very high, and the law provides sufficient leeway for the use of data even without consent.

Dr Dominik Sorber