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Inadmissible evidence through installation of a keylogger

Using a software keylogger may not always be much help in supporting a termination for cause, as a recent case before the Federal Labour Court shows (judgment dated 27 July 2017, docket number 2 AZR 681/16).

The employee had worked for the employer since 2011. When opening up its network, the company informed employees that internet and software use would be monitored. The company monitored keyboard use and also produced screenshots regularly. As a result of this, the company noticed that the employee had spent considerable parts of his working time on private use of the network. The company therefore issued an immediate termination for cause and, as a precaution, also observed the regular notice period.

The employee challenged the dismissal, and it was held invalid. The evidence obtained through the use of the keylogging software was found to be inadmissible, as the company had not had the right to install this software and had violated the employees right to “informational self-determination”. As the software monitored private activities of the employee, its lawful installation would have required a suspicion based on facts that a crime was being committed or, at least, a serious breach of duties. This standard was not met.