Monitoring employees who are working from home?

An employer had doubts as to whether an employee was working sufficient hours whilst working from home. Without discussing this with him beforehand, his log-in and log-out details were examined. On the basis of that information, the employee was summarily dismissed. The subdistrict court judge firmly rejected this.

According to the judge, the employer had insufficient grounds for the covert investigation. The employee was permitted to work from home, had been performing well shortly beforehand and, moreover, had previously indicated that he was experiencing a heavy workload. Furthermore, it could not be readily deduced from the login records how many hours he had actually worked. After all, tasks such as consultations, planning or analysis can also take place without someone being constantly logged into the company network.

According to the court, the employer should first have engaged in dialogue. A warning, clear agreements on availability, time recording or a performance improvement plan would have been less severe and more appropriate measures. The summary dismissal was therefore declared invalid. The employer was ordered to pay, amongst other things, a transition payment, compensation for wrongful termination and fair compensation of € 60,000.00.

For employers, the message is clear. Concerns regarding an employee’s performance, attendance or the number of hours worked must be taken seriously. However, covert monitoring and summary dismissal require a very careful approach. The employer must be able to demonstrate that there is a genuine reason for a covert investigation. The court refers to this as a ‘legitimate interest’. You should therefore ensure there is a clear justification, an appropriate monitoring policy and a valid basis under the GDPR. Discuss any suspicions with the employee first and consider whether a less drastic measure is possible. A carefully compiled file can ultimately make the difference between a lawful decision and costly legal proceedings.

You can read the ruling here.