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Germany/ Federal Labour Court/ 2 AZR 426/18

Unknown private person (employee) v. unknown company (employer)

Policy area:
Employment and social policy
Deciding Body type:
National Court/Tribunal
Deciding Body:
Federal Labour Court
Decision date:
31/01/2019

Key facts of the case:

The plaintiff worked for the respondent who produces automobiles. The respondent provided a car with a tank capacity of 93 litres and a fuel card for the plaintiff, that the plaintiff was allowed to use also for private purposes. In May 2013 the respondent opened an internal investigation into an apparent leak of confidential company information. In the course of the investigation the plaintiff’s work laptop was forensically examined. He fully cooperated, but mentioned the presence of private information on the laptop, among others he kept accurate records in an Microsoft Excel file about all the refuelling procedures paid for with the company’s fuel card. Based on the entries in this Excel file, the respondent suspected that the plaintiff had used the fuel card not only for his staff car but also for a private vehicle, as he had bought up to 101 litres of fuel on more than one occasion. Thus, the respondent terminated the employment relationship due to the loss of mutual trust. Against this decision the plaintiff lodged a complaint with the local labour court, the decision of which to continue the employment relationship was successfully challenged by the respondent in the next instance. In his appeal the plaintiff demanded the Federal Labour Court to restore the first instance decision.

Key legal question:

The Federal Labour Court examined the question whether the court of appeal had considered the information in the Excel table found on the plaintiff’s work laptop – apparently of private origin – in accordance with the Code of Civil Procedure’s (Zivilprozessordnung) rules concerning the assessment of evidence.  

Outcome of the case:

The Federal Labour Court held that the information on the plaintiff’s laptop was obtained in an admissible way by the respondent, especially in accordance with the national data protection regulations, and that therefore the evidence was applicable for the court’s ruling. In the present case the reconciliation of interests lead to the conclusion that the investigative measures executed by the employer did not violate the plaintiff’s right to privacy, in particular as the forensic examination did not happen covertly and was consented by the plaintiff.