Private use of internet and e-mail during working hours – Termination without notice due to “working time fraud”

The private use of internet and e-mail despite a corresponding prohibition during working hours on company devices can justify termination without notice under German labour law the Higher Regional Labour Court of Cologne ruled on 7 February 2020 (docket number: 4 Sa 329/19).
The case

An employee of a company had written several e-mails and accessed multiple web pages on multiple occasions for private use during his working hours on a company laptop although there was an explicit prohibition of private use of company devices in place. The employee had also consented to the laptop being checked regularly for such private use by the employer. The use of company time and company laptop for private purposes carried on between November and February. On one day the employee accessed a total of 860 websites for private purposes such as Facebook and Whatsapp. The day after he also wrote a total of 13 e-mails to his father via the business e-mail account, which included the planned purchase of a new car. The employer issued a termination without notice in the beginning of March due to the conduct of the employee after having found out about the misuse of working time by the employee. The employee then filed an anti-dismissal claim that was rejected by the Local Labour Court and appealed to the Higher Regional Labour Court of Cologne .

The judgement

The court considered the termination without notice as valid.
It decided that the private use of the internet and e-mail on a company computer, despite a corresponding prohibition during working hours, justifies termination without notice if the employee has regularly called up URLs and e-mails for private purposes on several days continuously and for months. According to the court this applies all the more if there is a period of less than one to two minutes between the individual URL calls, because no work can have been performed in between.

In general an employment relationship can be terminated without notice for an important reason if there are facts on the basis of which, taking into account all the circumstances of the individual case and weighing up the interests of both contractual parties, the person giving notice cannot reasonably be expected to continue the employment relationship until the end of the notice period. The existence of an important reason must be examined in two stages. First, it must be examined whether a certain situation is suitable as an important reason for termination in general (1st stage). If such a situation exists, a further examination is required to determine whether or not the continuation of the employment relationship is reasonable, taking into account the specific circumstances of the individual case and weighing the interests of both contractual parties – at least until the end of the notice period (2nd stage).
Failure to comply with prescribed working hours and the performance of private activities during working hours using the company’s computer as well as excessive private telephone calls during working hours can in themselves constitute such an important reason – as multiple courts have decided before. The Higher Regional Labour Court of Cologne also argued that if the employee uses the company computer during his working hours for private matters to a considerable extent, he cannot rely on the employer’s tolerance of this. Rather, he must expect that the employer will not agree if his employee does not perform his work during this time and nevertheless claims a corresponding remuneration for it.
The deception of the employer about the fact that an employee has worked- so called working time fraud- while in fact – because of private activities – no work was performed, regularly constitutes a reason suitable for terminating the employment relationship without observing the notice period.

The court also examined whether it could use the contents of the e-mails on the business laptop and the entries in the log files of the internet browsers in the proceedings as evidence or if it could potentially be prevented from doing so due to a procedural prohibition ban due to data protection laws.
However, the court decided that the provisions of the respective data protection laws have been complied with by the defendant in this case and that while in general these provisions are designed to protect the personal rights of the employee, in this case the data protection provisions cannot stop the court from using the personal data from the plaintiff’s business laptop as evidence.

While not every case of private activities during working time will automatically enable employers to issue terminations without notice, this decision gives a legal basis for terminations without notice in cases of extreme working time fraud and private use of company devices during working time.