European courts continue to clarify the right of employers to
review their employees' emails. As we discussed previously, the
European Court of Human Rights and the National Labor Relations
Board of the U.S. have recognized that employers have the right to
monitor their employees' internet communications in order to
ensure productivity during work. (To review the holdings by the
ECHR and NLRB, please click
Shortly after the ECHR opinion, the German Regional Labor Court
in Berlin-Brandenburg held that an employer was entitled to check
an employee's internet use without consent and that the
employee's excessive personal use of the internet during
company time justified immediate termination. In the case, the
employee had a work computer that, according to company policy, was
only allowed to be used for work-related purposes. The employer was
told that the employee often used his computer for non-work
activities, such as surfing the internet. The employer first
checked and saw that the employee's volume of data for his
internet usage was surprisingly high, and then decided to actively
monitor the employee's internet use for 30 days. Over that
month, which would constitute approximately 160 working hours, the
employee logged almost 40 hours of private internet usage. The
employer immediately terminated the employee for good cause. The
employee challenged the termination on the grounds that his
browsing history could not be monitored without consent, and that
therefore the browsing history should be excluded from trial. The
Regional Labor Court ruled for the employer on each claim. The
court held that:
The employee's actions were a valid reason for an immediate
good cause termination.
Under the Federal Data Protection Act, the employer was allowed
to gather the information from the employee's computer even
without consent, and the browsing history was therefore admissible.
The court held that data can be gathered when it relates to the
working relationship, and that consent was not necessary because it
would not have altered the nature of the review and there was no
other way for the employer to monitor this misuse of company
Finally, the court ruled that the employer was not a service
provider under the more stringent German Telecommunications Act.
This is important because it allowed the company to access the data
following only the less restrictive provisions of the Data
Notably, the employee has appealed this decision to the national
German labor court, which may decide whether employers are service
providers under the stricter Telecommunications Act. This would
limit the ability of German employers to monitor internet
The decision is consistent with the decision of the ECHR in
Barbulescu: that employers are allowed to monitor employee
use of work computers to ensure productivity during working-hours.
The decision also affirms prior German labor court rulings that
have held that extensive unauthorized private use of the internet
can justify termination. Employers should be aware that this case
is currently under review, and that the national court's
decision may impose stricter monitoring and consent requirements on
However, the decision illustrates a promising uniformity across
jurisdictions. Namely, there is a growing acceptance of the right
of employers to monitor employees' use of company computers
when used to ensure productivity, provided that the company's
policies and rules clearly detail the employer's right to
monitor internet usage on company equipment.
April 2015 saw the reshaping of family-friendly leave with the birth of Shared Parental Leave (SPL). Can employers offer enhanced contractual pay to mothers/primary adopters but not to fathers/partners?
In an eagerly awaited decision, the Court of Appeal ruled earlier today that creditors cannot access a bankrupt's pension benefits which have not come in payment.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).