MONITORING INTERNET AND EMAIL USAGE — GERMANY

MONITORING INTERNET AND EMAIL USAGE — GERMANY

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MONITORING INTERNET AND EMAIL USAGE — GERMANY SURFING INTO UNEMPLOYMENT? PRIVATE INTERNET USE AND EMAILING UNDER GERMAN LABOUR LAW Jan-Malte Niemann, LLM (Norwich)

This article explores recent German case law governing the monitoring of Internet and email activity by employees in Germany.

A. INTRODUCTION

1. ORDINARY TERMINATION

At the dawn of the new millennium the Internet has moved into virtually every office. Its countless benefits are expressly appreciated by employers all over the world.Yet the omnipresence of the World Wide Web is a double-edged sword. It is a truism that employees are not much better than other people and equally subject to the imperfections lying dormant in human nature.Thus many of them cannot resist the constant temptations of cyberspace, be it interactive games, online newspapers or e-shopping — just to mention a few. Most employers are well aware of their staff’s private online activities, which turn them away from work and incur additional telecommunication costs. Nevertheless, many expressly allow or at least tolerate a certain level of diversion, hoping that contentedness will after all result in a gain in productivity.This calculation, however, only works out if the private use of the Internet is not entirely out of place. Hence, excessive surfing may justify the termination of the contract of employment.1 There is not yet a solid body of jurisdiction precisely shaping the requirements for an effective termination on the ground of excessive private surfing. On the other hand, the general principles worked out by the German Federal Labour Court (BAG) apply and one can beneficially extrapolate from the existing case law on the private (ab)use of the telephone2 or other office equipment.3 Equally, cases of termination on the ground of forwarding private emails within the business4 can appropriately be solved against the background of the jurisdiction of the BAG.

In case of an ordinary termination, a certain period of notice needs to be observed by the employer. Its length depends on the time the employment relationship has already been in existence.5 Theoretically, an ordinary termination is possible without giving any reason as the German Civil Code (BGB) remains silent in this respect. Ss. 138 and 242 BGB in conjunction with Article 12 of the Constitution (GG) protects the employee against entirely arbitrary termination only.6 If, however, the business regularly employs more than five people7 and the contract of employment has already lasted for more than six months,8 the Protection Against Unwarranted Termination Act (KSchG) applies. According to the KSchG, the termination is void if it is socially unjustified9 and — in a first step — it is only three specified kinds of reasons that can socially justify it:10 • Reasons that lie within the urgent requirements of the business,(for example decline in orders, rationalization or shut-down of parts of business). • Reasons that lie within the person of the employee, (that he cannot influence, for example illnesses). • Reasons that lie within the behaviour of the employee, (that he can influence, for example constantly being late for work). Following the jurisprudence of the BAG it then — in a second step — has to be decided if the termination is approvable and appropriate, taking into consideration the concept of reasonableness and following a comprehensive process of weighing up the different interests involved (two-stage-test and ultimaratio-principle).11Among others, the following factors may be relevant in determining the appropriateness of a termination on the ground of misbehaviour:12 • Type, gravity and frequency of the misconduct. • Degree of fault (negligence or intention). • Amount of damage caused. • Extent of disturbance of the course of business. Obviously, excessive Internet surfing or inadmissible emailing

B. WAYS OF TERMINATION German labour law distinguishes between the ordinary and the extra-ordinary termination of a contract of employment. It is appropriate to put some flesh on the bones of these two alternatives right at the outset so as to put the following case reports in their proper context.

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Computer Law & Security Report Vol. 18 no. 2 2002 ISSN 0267 3649/02/$22.00 © 2002 Elsevier Science Ltd. All rights reserved

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is a fact which the employee can influence and thus a possible ground for termination that lies within their behaviour. In this case, it also follows from the ultima-ratio-status of the termination that as a preliminary step the employer regularly has to deliver a caution in concrete terms which is intended to fulfil a complaint and warning function.13 This is true even if the misconduct affects the ‘sphere of confidence’, (as opposed to the mere ‘sphere of performance’), as long as the employer’s trust is restorable.14

2. EXTRA-ORDINARY TERMINATION The possibility of an extra-ordinary termination of a contract of employment is provided for in s. 626 BGB. It states that a contract of employment can be terminated on an important ground by one party without prior notice if facts exist that — taking into consideration all circumstances of the individual case and after weighing up the interests of both parties — make it unreasonable to demand the continuation of the contract until an ordinary termination can take effect.15 Again the BAG16 has proposed a two-stage-test which has met with predominant approval in the academic literature. First, it needs to be determined if the employer has put forward facts that are generally capable of representing an important ground and that have actually influenced the employment relationship in the particular case in question.17 Second, the justification of the concrete termination has to be established by weighing up all conflicting interests of the parties.18 With a view to the ultima-ratio-principle a prior caution regularly needs to be delivered.

C. EXCESSIVE INTERNET SURFING 1. THE FACTS OF THE CASE In the case before the Local Labour Court (ArbG) Wesel19 the plaintiff had been employed in the defendant’s business as an accountant since June 1994. In August/September 1999, the defendant had a new computer system installed. According to him the plaintiff was surfing the Internet for private purposes for 80-100 hours during her working time between September 1999 and September 2000. The court was concerned with the effectiveness of an extra-ordinary termination without prior caution of 15 December 2000 of the plaintiff’s contract of employment. The employee’s protective action was successful.

2. THE GUIDING PRINCIPLE It was held that it amounts to a breach of duty that may well justify the termination of the contract of employment if an employee privately uses the Internet contrary to an explicit prohibition by the employer. If, however, the employer has explicitly or impliedly approved of the private use of the Internet, a termination is only possible if the surfing was so extensive that the employee was not entitled to reasonably believe that it was still covered by the employer’s consent. In this event a prior caution is unnecessary only if such an extent is reached that a gross misconduct can be assumed.

3. THE INDIVIDUAL LINE OF REASONING It was concluded that there was no important ground within the meaning of s. 626 I BGB that would justify the extraordinary termination of the contract of employment.This is so even if one pre-supposes that the defendant’s assertion as to the private use of the Internet by the plaintiff is absolutely correct. In reaching its decision the court applied the threepart guiding principle set out above: • First of all, private Internet surfing during working hours was not explicitly prohibited by the defendant. Thus the crucial question was whether the plaintiff was reasonably entitled to believe that her online activities were still covered by her employer’s explicit or implied consent. According to the defendant, the private use of the Internet ran up to 80 - 100 hours within the period of one year.At first glance 100 hours may seem quite a lot, but per average this amounts to no more than 23 minutes per working day. Hence it cannot be assumed that it was obvious for the plaintiff that her behaviour was not consented by her employer.This is especially so because the (ab)use of the Internet is said to have taken place in the first year following the installation of a new computer system and thus during a kind of ‘learning phase’, where it is in the nature of things that the ordinary Internet use is intensified. If in this event the employer is not able to exactly tell business from private surfing, it must be assumed that there was no exclusive private use. Even websites with topics of private interest might have been visited for learning purposes.This makes it almost impossible for the employee to see clearly the extent of her alleged misconduct. • Moreover the plaintiff was reasonably entitled to believe that the defendant accepted her behaviour. Her employer was well aware that there was Internet use at her workplace. This follows from telephone bills signed by his managing director. Private surfing, however, is often considered a mere pastime or peccadillo. If the employer sees this differently, it is up to him to fix the extent acceptable to him and deliver a caution in case of contravention.This has not been done in the present case and consequently the extra-ordinary termination was held invalid.

4. THE ORDINARY TERMINATION On 15 September 2000, the employer had also declared an ordinary termination of the contract of employment to take effect on 31 December 2000. These proceedings are still pending. It is foreseeable, however, that the ordinary termination will be held invalid as well. There was no prior caution delivered and it has been shown that there was no gross misconduct making it unnecessary.

D. FORWARDING PRIVATE EMAILS 1. THE FACTS OF THE CASE In the case before the Local Labour Court (ArbG) Frankfurt a.M.20 the plaintiff had been employed in the defendant’s business as a receptionist since July 1999.The defendant is a large office of lawyers employing more than 4500 people in 22 establishments world-wide. Even the number of staff in its Frankfurt a.M.branch amounts to about 100. All establishments

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and the individual workplaces are integrated into a computer network and a large part of the business correspondence is dealt with by email. There is a general internal instruction demanding that private email and unknown attachments must not be opened and/or forwarded — the main reason being the protection against computer viruses. At a staff meeting of February 2000 it was pointed out to the employees that any contravention will result in an extra-ordinary termination of the contract of employment. In June 2000 the plaintiff received a ‘chain letter’ from her aunt by email and as she liked the contents she forwarded it to her colleagues in the office. As a consequence the defendant declared an extraordinary and — precautionary — an ordinary termination of the contract of employment. With her lawsuit the plaintiff attacks the termination. She disputes that the email she opened and forwarded caused a virus risk to the system as it did not contain attachments. Moreover, she refers to the ultra-ratio-principle and points out that there has been no prior caution delivered. The defendant claims that the plaintiff’s behaviour has put at risk the entire data of the business irrespective of the existence of an attachment.The plaintiff is said to have acted like a petrol pump attendant who lights a cigarette while fuelling a car. A prior caution was dispensable because the plaintiff violated the relation of trust so heavily that it could not be restored. Finally, the plaintiff had to be well aware of the consequences of her misconduct due to the internal order and the warning at the staff meeting. Again the employee’s protective action was successful.

2. THE GUIDING PRINCIPLE

• The plaintiff forwarded the email because she liked it, not presently being conscious of the internal order and the virus risk at the time of her action. • Most importantly, it was the plaintiff’s first and only misconduct. • A caution would have made the plaintiff fully aware of the possible consequences of her behaviour and would most probably have prevented further misconduct. • An anticipated and rather general caution in form of an internal order is not sufficient as it does not properly fulfil the warning and especially complaint function. As a result of the above reflections the ordinary and extraordinary termination were held invalid.

E. CONCLUSION As an advice to all employers it might be concluded that God only helps those who help themselves. Thus it is entirely up to them to establish clear rules as to the tolerable extent of private Internet surfing or the admissibility of private emailing. Even this, however, will not spare them the trouble of a detailed prior caution unless there is such gross misconduct that it could not reasonably be assumed that it would meet with the employer’s approval. Jan-M Malte Niemann, LLM, Law Student at the University of Münster (Germany).

FOOTNOTES 1

Local Labour Court (ArbG) Wesel, NZA 2001, 786. Regional Labour Court (LAG) Niedersachsen, NZA-RR 1998, 259. 3 Local Labour Court (ArbG) Berlin - 12 CA 3/80 on the private use of a business-owned photocopier. 4 Local Labour Court (ArbG) Frankfurt a.M., JurPC Web-Dok. 155/2001, . 5 S. 622 II Civil Code (BGB). 6 Federal Labour Court (BAG) - 2 AZR 15/00. 7 S. 23 I Protection Against Unwarranted Termination Act (KSchG). 8 S. 1 I Protection Against Unwarranted Termination Act (KSchG). 9 S. 1 I Protection Against Unwarranted Termination Act (KSchG). 10 S. 1 II Protection Against Unwarranted Termination Act (KSchG). 11 Bitter/Kiel, RdA 1994, 333 and 1995, 26. 12 Bitter/Kiel, RdA 1995, 26, 33. 13 Federal Labour Court (BAG), NZA 1985, 124. 14 Federal Labour Court (BAG), NZA 1999, 708, 710 and 1997, 1281, 1283. 15 S. 626 I Civil Code (BGB). 16 Federal Labour Court (BAG), NZA 1991, 719, 723. 17 Federal Labour Court (BAG), NJW 1989, 546, 547. 18 Federal Labour Court (BAG), NJW 1989, 546, 547. 19 Local Labour Court (ArbG) Wesel, NZA 2001, 786. 20 Local Labour Court (ArbG) Frankfurt a.M., JurPC Web-Dok. 155/2001, . 2

An ordinary or extra-ordinary termination on the ground of forwarding private emails within the business without prior caution is invalid.This is so even if such conduct had before been prohibited in a general internal instruction and an extraordinary termination been threatened in case of contravention.

3. THE INDIVIDUAL LINE OF REASONING It follows from the general ultima-ratio-principle that contrary to the point of view of the defendant, a prior caution was necessary. Such a caution is only dispensable in rare cases.Thus it need not be delivered if the employee himself makes clear that he intends to continue or repeat his misconduct anyway. This exception, however, does not apply in the present case. Furthermore, a prior caution is unnecessary if there was such gross misconduct that the employee in any event was not entitled to reasonably assume that the employer would accept his behaviour. This second exception, however, equally does not apply for the following reasons: • The sender of the email (her aunt) was known by the plaintiff.This reduces the risk of a virus infection.

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