Germany employment briefing – October 2017
19 October 2017
Our Germany employment briefing provides updates on the Works Council elections taking place in 2018 and the collection and monitoring of employee data.
Works Council elections 2018
Regular Works Council elections will take place in business units with existing Works Councils between March and May 2018.
Works Councils in Germany have a regular four year term and there are nationwide elections for existing Works Councils at those four year intervals. As the electoral process is something which has to be organized by the Works Councils themselves, there is technically only a small role for the employer to play in the process. Namely, the employers provide the required employee data as well as facilitating the elections by providing the respective time, space and hardware to accommodate the elections.
Even though it is a criminal offence for an employer to actively influence the elections, there are some legal options available to employers. One is to encourage individuals who are eligible to participate in the elections to be put forward as a candidate. This encourages individuals whom the employer believes are preferable, for example if they are more commercially focused than the current Works Council members, and may therefore be more “employer friendly”. Even so, there is no guarantee these individuals will end up as Works Council members.
On a final note please be aware that Works Councils may be established at any point in time between the four year intervals. There is no legal requirement to have a Works Council but if the minimum size threshold is met (if there are five employees and your workforce wants to establish a Works Council) there is no way to hinder its establishment. If a Works Council gets newly established outside the regular term this will only have an influence on the duration of the initial first term of the newly elected Works Council. Depending on when it was established during the four year term, the initial term is either shortened or extended in order to pick up with the next regular term elections.
Significant judgment on the scope of employee data monitoring and data collection
A recent decision by Germany’s highest Employment Labour Court dealt with a case where an individual used the company’s IT excessively for private purposes. The company had a policy in place only allowing its IT to be used for business purposes. In order to check compliance with this policy the employer introduced a “key logger” system which enabled the company via their IT Department to follow every step an individual took on their computers. As a result, they identified the excessive use by the individual and summarily dismissed on the grounds of gross misconduct.
The federal Labour Court found the dismissal unfair and therefore null and void. They based their decision on the fact that, in the context of data protection laws, collecting data on individuals’ computer usage by means of the key logger system was not allowed due to the lack of a justification for this kind of data collection.
That means that general blanket data collection in order to check policy compliance will not suffice to justify the data collection. An employer may only collect data anonymously if it has a definite suspicion of significant policy wrongdoing based on facts.
This decision has a significant impact on the collection of data and how and whether a company may check for compliance by individual employees.