Court case 7 Sa 635/23 – Court Ruling (Germany, 2025)

The employer of a company suspected that his employee was pursuing private activities during working hours, using the company car for private purposes and not recording this as break time. The employer then hired a private detective to observe his employee on individual days. In November 2022, the detective observed him on five days and revealed multiple work violations. In particular, the employee took longer breaks at the bakery, went to private photo shoots or went to his girlfriend's place. As he worked as a ticket inspector, it was impossible for him to continue working during these periods. In order to definitively establish the suspicion, the detective was to observe the employee over a fixed period from 1 December 2022 to 16 December 2022. During this period, the employee was photographed, documented and a GPS was attached to his company car. The detective and the employer were able to establish that he had committed working time fraud totaling almost 26 hours. As a result, he was fired. The employee filed an action for protection against dismissal under national labor law, the employer counterclaimed the costs for the private detective. The court ruled that the observation of the employee by the detective was admissible under [https://www.gesetze-im-internet.de/englisch_bdsg/englisch_bdsg.html#p0222 Section 26(1) of the Federal Data Protection Act (Bundesdatenschutzgesetz - BDSG)] and that in any case there was no prohibition on the use of evidence even if the observation was inadmissible. The second sentence of this provision reads: "Employees’ personal data may be processed to detect crimes only if there is a documented reason to believe the data subject has committed a crime while employed, the processing of such data is necessary to investigate the crime and is not outweighed by the data subject’s legitimate interest in not processing the data, and in particular the type and extent are not disproportionate to the reason." The court held, that the observation of the employee did infringe his right to informational self-determination. However, the infringement was of low intensity, as he was only observed during his shift times over a period of a few days. Consequently, the court held, that the infringement was jusitified under Section 26 BDSG. In consequence, the court dismissed the employee's claim for protection against dismissal. The court also held, that the employee must also pay the detective's fee in the amount of €21,608.90, as the employee caused such costs by committing working time fraud.