On 8 June 2017 the Labour Court of Heilbronn decided that a smartphone application, provided and operated by an employer, allowing customers to share their feedback including statements about the performance and the behaviour of certain employees is not a surveillance tool according to § 87 I Nr. 6 BetrVG, if the employer does not ask for this kind of feedback and does not process the information further (judgement of the Heilbronn Labour Court dated 8 June 2017, docket number 8 BV 6/16).
The employer, a company operating in the food retail business, runs an application that offers the possibility to give feedback to the individual branches of the employer. The app is available in common app stores and the feedback can be given as a free text that is delivered to an external service provider that views, collates and sorts the messages according to each branch and then sends it back to each store manager on a weekly basis.
The works council argues that this feedback operation infringes its right to co-determination according to § 87 I Nr. 6 BetrVG and requested the omission of using the feedback function or at least the omission of the collection, storage and use of the data that is included in the customers’ feedback messages.
The labour court did not rule in favour of the works council.
Although the app may be a technical device within in the meaning of § 87 I Nr. 6 BetrVG, it does not cause any employee supervision. The app cannot carry out the supervision on its own because it just passes on the messages it receives from the customers but does not collect any data independently. Furthermore the information about the individual employees is not processed automatically by the app itself but by an external service provider. A collection of data however requires a proactive approach that targets the collection of data. In this current case the employer does not ask the customer proactively to share their feedback. The app rather passively accepts the feedback messages. In consequence the app is not a surveillance tool according to § 87 I Nr. 6 BetrVG, hence the works council’s co-determination right according to § 87 I Nr. 6 BetrVG is not infringed.