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Article Date: 02/05/2007
Article Title: Employees' use of the internet
A State Labour Court in Germany has ruled that an employer may prohibit an employees' use of the internet and e-mail for private purposes without co-determining the issue with an elected employee works council.
A works council is formed by "elected employees" and represents the interests of the work force. German law states that a works council must consist of at least five elected employees. German law states that an employer, where requested to do so, must co-determine any issue which affects the general conduct of employees with a works council. The co-determination rights of the works council are stronger where an employer’s proposed course of action affects a number of working conditions. The rights are weaker however where the course of action is based on entrepreneurial or business motivations.
At first glance, it could be argued that a ban on private use of internet and email affects the "operational order" of the working environment. Operational order is taken to include matters such as employee behaviour and is generally an issue that requires co-determination with a works council. However, the court in this case argued that the employer’s decision to ban the use of internet and email for private purposes was based solely on "work habits" of the employees and not the operational order of the workplace. The court justified this conclusion stating that permission in the past to use the internet and email for private purposes was expressly granted to employees by a direct "instruction" from the employer, and did not arise because of any entitlement (for example in a contract of employment).
The result is a decision which undoubtedly strengthens the autonomy of employers. It should be stressed that the decision is not one of the Federal Labour Court, the highest labour court in Germany. As such, the Federal Labour Court and other lower State Labour Courts may arrive at a different conclusion in similar cases. There is also no requirement under German law for lower courts to follow the decision of higher courts. However, and perhaps ominously for employees, such dissent is rare in practice.
Frank Achilles
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