Employers must watch out when watching employees

The Federal Labour Court (Bundesarbeitsgericht) ruled on February 19, 2015 (docket number: 8 AZR 1007/13) that the covert observation of an employee by a private investigator is illegal in circumstances where the employer has no legitimate reasons for carrying out such an observation.

In the case under consideration, the employee was unable to work for about two months and presented in total six doctor’s certificates from two different medical doctors. The illness started shortly after a serious dispute between the employee and her superior. As a result, the employer had doubts as to the veracity of the employee’s illness, and instructed a private investigator to observe the employee. The private investigator took several pictures and video recordings.

According to the Federal Labour Court, such covert observation is illegal unless the employer is able to present concrete facts that are able to compromise the probative value of the medical certificates. The facts in the present case were unable to justify a lawful observation as it is neither unusual to change a medical doctor nor to become ill shortly after a dispute. The Federal Labour Court explicitly leaves open the question of what concrete facts may justify a lawful observation.

As a result of the illegal observation, the employee was awarded EUR 1,000 compensation.