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Extraordinary dismissal due to internet use for private purpose

Employers are allowed to analyse browser history
(Higher Labor Court of Berlin-Brandenburg, decision dated January 14, 2016 – 5 Sa 657/15)

The Higher Labor Court of Berlin-Brandenburg decided that private use of the company internet access for approximately 40 hours during 30 workdays during the working hours gives the employer grounds for extraordinary termination of the employment relationship even if internet use for private purpose is allowed on an exceptional basis.

The court also decided that in order to investigate the grounds of termination the employer may analyse the browser history of the company laptop that the employee uses without his consent and may use this in the later action of protection against the dismissal.

In the decided case, the employer has provided the employee with a company laptop and allowed private internet use in exceptional cases during breaks from work. After various indications for severe private use of the internet by the employee, the employer analysed the browser history of the laptop without the employee’s consent with the result that the employee had used the internet for private purpose as mentioned above during worktime. Based on that the employer terminated the employment relationship without notice.

The Higher Labor Court decided that the extraordinary dismissal is effective, since the employee has violated his major employment obligation by his extensive private internet use. The court further found that the employer was allowed to analyse the browser history of the employees’ company laptop without his consent and that the employer was authorized to use the analysed entries during the proceedings against the dismissal against the employee in order to prove the excessive internet use. Although this concerns personal data and the employee has not given his consent to control these data, the evidence is not inadmissible. This is because the Federal Data Protection Act (BDSG) also allows storing and analysing of browser history without the employee’s consent in order to control abuse (Sec. 32 para. 1 cl. 1 BDSG). According to the decision by the Higher Labor Court, Sec. 88 para. 3 TKG which prohibits service providers in the sense of Sec. 3 no. 6 TKG to gain knowledge of the contents or the circumstances of telecommunication beyond what is necessary for providing business-related telecommunication services, including protecting their technical systems, does not apply, since the employer who permits private use of company telecommunication systems is no such service provider in the sense of the TKG. This decision is not yet legally binding. The Higher Labor Court granted to appeal the decision at the Federal Labor Court.

Practical Recommendations:
There is legal uncertainty for the employer until it is decided in a legally binding way whether the employer is authorized to analyse and use log data without the employee’s consent in order to prove the employee’s inadmissible internet use for private purpose in case the employer permitted use for private purpose. Therefore, it is preferable to observe the stipulations of the TKG when allowing private use and establish clear rules for monitoring and analysing private log data of internet use.

Attorney and certified<br />specialist for labor law
Attorney and certified
specialist for labor law
Ines Heydasch

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