In a judgment dated 13 September 2018 the Higher Labour Court of Hamburg (docket number 2 TaBV 5/18) ruled that if the employer operates a Twitter account, at least on the basis of the reply function, the (general) works council has a co-determination right according to section 87 para. 1 no. 6 Works Council Constitution Act (Betriebsverfassungsgesetz). The co-determination right does not require that the technical facility is designed to monitor the performance and behaviour of employees. It suffices that the possibility exists.
Twitter is an American online news and social networking service on which users post and interact with messages known as “tweets”. Users can join conversations by replying to others and by mentioning them in their own tweets. In addition, users can share a tweet publicly with their followers. The employer’s tweets are visible to everyone, including non-registered users, on the website belonging to the employer’s Twitter account. The replies from registered users to tweets by the employer are visible to the employer and, if it is not a protected answer, at least to all Twitter users. The employer cannot delete any reply himself. In addition, the Twitter’s reply function cannot be deactivated by the employer (in contrast to the comment function on a Facebook page).
Following the publication of the judgment of the Federal Labour Court (13 December 2016 – docket number 1 ABR 7/15) regarding co-determination if the employer operates a Facebook page with a comment function, the (general) works council took the decision to initiate the decision-making procedure regarding the deactivation of the employer’s Twitter account. The employer refused to deactivate the Twitter account.
The application of the (general) works council to prevent the operation of the Twitter account until his consent or a decision of the conciliation committee replacing his consent has been obtained, did not succeed in front of the local labour court. The appeal in front of the Higher Labour Court, however, was successful. The appeal to the Federal Labour Court was admitted and the procedure is pending (docket number 1 ABR 40/18).
The plaintiff’s injunctive relief follows the employer’s violation of co-determination by setting up and operating a Twitter account. The (general) works council has to be involved in the operation of a technical facility intended to monitor the behaviour and the performance of employees. The right to co-determination is aimed to protect employees from any impairment of their personal rights by using technical monitoring devices that are not justified and disproportionate in the light of the concerns of the employer. Because of the visibility of the replies to both the employer and the Twitter users, depending on the content of the reply, the employer may assign it by name and situation to a specific employee and use it for behavioural and performance control.
The fact that these are replies to employer tweets does not justify a different assessment. Monitoring performance already includes the collection of data that contains statements on the behaviour and performance of employees. Whether the employer intends to evaluate and further process the data is irrelevant. It is sufficient that an assessment remains possible.
Also, the fact that the replies to tweets of the employer remain on the accounts of the respondents and cannot be deleted by the employer does not justify any other assessment because the location is irrelevant to the purpose of employee protection. Rather, it is the question of who the news/answer is for. The fact that the answers cannot be deleted also increases the monitoring pressure for the employee.
The current decision shows that co-determination depends on the individual circumstances of the internet presence of the employer. Thus an employer presence without the possibility of interaction usually does not trigger any co-determination rights. Insofar as an interaction is permissible and it is possible to influence the behaviour and performance of individual employees as a result the co-determination rights of the works council will intervene.