Which employer is not familiar with this situation? An employee with whom the work relationship has not been running smoothly for a certain period of time is frequently or permanently ill and is suspected of competitive activity on his or her own behalf or for a competitor during the illness.

However, there are only rumours and indications – such as information that the employee or his car has been seen by the competition – and no concrete evidence. In such situations, some employers may try to use covert video surveillance or hire a private investigator. Yet caution is called for in this case because a violation of the data protection law can quickly lead to the inadmissibility of the evidence obtained. The Federal Labour Court has however lowered the bar for the employer in a recent ruling.

As per § 32 para. I sent. 2 BDSG (Bundesdatenschutzgesetz; German Federal Data Protection Act), a covert surveillance measure which serves to clarify a criminal offence committed within the scope of employment may be admissible. Conversely, this could mean that covert surveillance without suspicion of a criminal offence committed within the scope of employment is useless from the outset. For instance, in the case that has just been decided by the Federal Labour Court, since the six-week continued pay obligation had expired, fraud to the detriment of the employer did no longer come into question in matters concerning the fake illness. Moreover, non-competitive activities contrary to the terms of the contract do not constitute a criminal offence.

According to the Federal Labour Court, a fact-based and sufficiently concrete suspicion of a serious breach of duty on the part of the employee, which includes both the fake illness and a competitive activity, can also justify a covert surveillance measure in conformity with § 32, para. I, sent. 1 BDSG, which is not restricted by sent. 2, provided that the principle of proportionality is observed. According to this provision, the employee’s personal data may be collected, processed or used for employment purposes. However, the data collected must be necessary for a decision on the establishment, conduct or termination of the impending employment relationship to be made. Since termination of the employment relationship is only possible if there are grounds for termination, a covert surveillance measure may be necessary as per § 32 para. 1 sent. 1 BDSG, as the Federal Labour Court has now made clear.

Recommendation for practice

Not every rumour about sick employee’s alleged competitive activity should be believed. Nevertheless, if there are concrete grounds for suspicion, these should be investigated in order to eliminate the risks of suspicious termination. Concealed surveillance, which substantiates the suspicion and proves a serious breach of duty, should under no circumstances be excluded for fear of violating the BDSG.

By Thomas Geißler