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Employer is entitled to check travel costs using Google Maps

Checking an employee‘s travel expense accounts using Google Maps does not come under in–company co–determination (Hamburg Higher Labour Court, decision dated 02.05.2012 – H6 TaBV 103/11)

‚Wenn einer eine Reise tut …‘ (If you want to take a trip) is not just the opening line of a well-known German nursery rhyme, but also the title of a poem penned by German poet Kurt Tucholsky in 1926. Moreover, a recent ruling of the Hamburg regional labour court could also come under this heading:

The distances shown in the employee‘s travel expense accounts seemed excessive to the employer, who therefore checked the stated distance using the Internet service and route planner Google Maps. The employee was informed of the resulting discrepancy between the actual distance and the distance specified in the travel expense accounts and was subsequently given a written warning. In response, the works council demanded that the employer cease using Google Maps in the company and enter into negotiations regarding the conclusion of a works agreement on the use of “Google Maps”. After the employer refused to comply with these demands, the local works council initiated proceedings before the Hamburg labour court, because allegedly mandatory co-determination applied pursuant to §87 (1) no. 6 German Works Constitution Act (BetrVG). The works council regarded Google Maps as a technical means of surveillance.

The labour court rejected the works council‘s petitions to prohibit the use of Google Maps in the company. This ruling was confirmed by the Hamburg regional labour court. In their substantiations, the courts explained that the works council‘s rights of co-determination had not been violated. In the first place, through the use of Google Maps no data or information were collected on the conduct or performance of employees through recording and no statements made in this regard. Querying a distance in Google Maps merely served to answer an abstract question as to the distance between points A and B. Places of residence or work as entries did not constitute meaningful data with which it might be possible to infer something about the employees‘ conduct or performance. Established case law compares the use of Google Maps to the use of technical (surveillance) aids such as glasses, time clock or conventional writing utensils, which do not come under elements relevant to co-determination. While Google Maps is a technical system, it does not, however, offer a surveillance function nor is there any requirement to be directly connected.

Practical recommendations

The ruling permits the continued use of a helpful tool for checking travel activity within the scope of day-to-day personnel management. And above all it also shows that companies should not recoil in the face of the assertion of allegedly extant rights of co-determination unless absolutely forced to do so. However, one issue remains unresolved: an appeal has been lodged in this case before the Federal Labour Court under reference number 1 ABR 43/12. We will therefore have to wait what the court in Erfurt has to (conclusively) say on the matter.

Dr. Jan Tibor Lelley LL.M.
Author:
Lawyer and certified specialist
for labour and employment law
Dr. Jan Tibor Lelley, LL.M.
lelley@buse.de

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