In a December 13, 2007, decision, the Federal Labor Court opined on how to treat information that an employer had obtained illegally as part of a wrongful-termination action. In this case, the employer, a drugstore operator, had searched an employee's briefcase and locker; the search revealed that the employee had stolen a tube of lipstick. However, the search had not been performed in accordance with the works agreement that management and the works council had concluded. The employee was terminated for cause and filed a lawsuit claiming wrongful termination.

This case is noteworthy because (i) it confirms that the theft of a low-value item may indeed be grounds for termination for cause; and, more controversial, (ii) even though the employer violated the terms of the works agreement regarding employee searches, it was still able to present the evidence that it had gathered.

Principle of Validity Requirements

Many jurisdictions subscribe to the "fruit of the poisonous tree" doctrine. This doctrine essentially holds that illegally obtained evidence may not be presented in court as evidence. German law does not follow this doctrine, meaning that in Germany, the results may be different than in other jurisdictions.

Germany subscribes to the principle of "validity requirements." Under this principle, an employer's actions against an employee may be illegal if the action is subject to a works council's right of codetermination when there is no applicable works agreement in place, or if the action taken was not in accordance with an applicable works agreement. Searches by employers clearly fall within the purview of codetermination because they involve employee behavior in the workplace, a fundamental aspect that is subject to the right of codetermination.

Based on the above, it would seem reasonable to conclude that the Federal Labor Court would not take into consideration the evidence gathered from the illegal search. Surprisingly, however, the court did accept this evidence. The employee claimed that from a procedural aspect, the court should not permit the introduction of the evidence, but she never disputed that the stolen item (the lipstick) was found in the jacket she had kept in the searched locker. Under these circumstances, the Federal Labor Court held that it would not be right to prohibit the employer from referring to the undisputed facts.

Introduction of Illegally Obtained Evidence

The court added that illegally obtained evidence could be excluded as evidence only if so permitted by statute or if recognition of the evidence violated one of the employee's constitutional rights. The Federal Labor Court held that neither of these two situations existed in this case. The court also stated that a distinction must be made between the illegal obtaining of evidence and its use from a procedural perspective; only if the use of the evidence constituted the "continuation of the violation of a right" must the evidence be excluded.

Though this reasoning may not be entirely transparent, the Federal Labor Court held that the principle of validity requirements does not bar the procedural recognition that the employee had a tube of lipstick in her pocket. German constitutional law holds that every individual has "personal rights," meaning a person cannot be subjected to actions that violate his dignity as a human being or his basic human rights. In the case of the stolen lipstick, the employee's personal right had clearly been affected and had potentially even been violated. But the court did not see it this way, concluding that the search was not severe enough to warrant suppression of the evidence. (The court did not address whether the outcome would have been different if the employee had objected to the search from the outset.)

Consequences of Illegal Searches

What does all of this mean? First, an action that violates an employee's constitutional rights does not automatically result in the exclusion of illegally obtained evidence. Second, the Federal Labor Court pointed out that there may indeed be violations of constitutionally protected rights that can result in the exclusion of evidence.

The German media recently reported on cases in which employees of discount grocery stores were illegally subjected to video surveillance. Commentators debated amongst themselves whether the results of that surveillance could be introduced in court. It is easy to imagine that the Federal Labor Court would conclude that an employer could not introduce such evidence. Along the same lines, an employer could be prevented from introducing as evidence emails or other electronic communication found on an employee's computer unless the employer had clearly and emphatically prohibited the private use of the company's communication system. Cases such as these will undoubtedly be presented to the Federal Labor Court in the not too distant future.

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