The Works Council’s right of co-determination regarding the Employer’s Facebook presence

The German Federal Labour Court (Bundesarbeitsgericht) decided on 13 December 2016 that the Works Council has a right of co-determination when the employer’s Facebook page allows other users to post comments, which are related to the behaviour and performance of the employees.

The employer operates a blood donor service. The doctors working at the blood donation events and all other employees wear name tags during their work. The employer’s Facebook page was established as a marketing strategy and gives users the option of posting comments. Some comments were made in relation to the staff’s behaviour and performance.

The Works Council feared that the employer could be looking specifically for employee misbehaviour and therefore requested a right of co-determination. The employer might be able to control and monitor the employees by reading the evaluations made by the Facebook users, which could then lead to high monitoring pressure for the affected employees. The employer considered that it could unilaterally set up the Facebook page. The comments made by Facebook users would not lead to the collection or use of data or to any other kind of performance control.

The German Federal Labour Court ruled that the Works Council has a right of co-determination as far as the direct publication of posts is concerned. Any comment which is directed towards the evaluation of an employee’s behaviour or performance is to be equated with monitoring employees using a technical device in the meaning of section 87 para. 1 number 6 of the Works Constitution Act (Betriebsverfassungsgesetz).

The Works Council’s right of co-determination always applies when personal data comes into play and makes it objectively possible for the employer to monitor his staff. It is irrelevant whether the employer actually does use the data. The option to comment on staff on an employer’s public Facebook page might influence the employer as well as the employee himself. To be on the safe side, employers should include the Works Council in the setup of their Facebook page.