Crimes committed within companies are not trivial offenses! But how can an employer uncover thefts which are obviously carried out in secret? For many employers, the answer is obvious: secret investigations using video cameras, for example. But are such measures permissible and can the employer then use any discoveries made in the context of proceedings before the employment courts? The Federal Employment Court dealt with these questions in two recent decisions and held that findings made through secret investigations could not then be used in court proceedings.
Secret locker search
In the first case the employer found stolen terms by carrying out a search of an employee’s locker in the presence of the works council. Although the employee had committed a crime against the employer, the employer could not validly terminate the contract of employment because the Federal Employment Court held that the search of the locker without the knowledge of the employee was illegal (decision dated 20.6.2013 – 2 AZR 546/12).
Secret video surveillance
In a second case the employer wanted to uncover empty bottle variances using secret video surveillance in the checkout area. In doing so the employer discovered that one checkout operator collected change left behind by customers in a cup and then helped herself to this money. This accidental finding could also not be used in proceedings against the checkout operator (Federal Employment Court, decision dated 21.11.2013 – 2 AZR 797/11).
What is allowed?
In both cases, the Federal Employment Court held that the secret investigations infringed the general personal rights of the respective employees. The interest of the employer in using the evidence obtained did not override the opposing interest of the employer to protection of his/her privacy. At the same time, the Federal Employment Court gave employers instructions on how to uncover crimes stating that secret investigations were only permissible if there was no milder or similarly suitable means available. This was the case in particular for secret video surveillance because the continual surveillance would seriously affect the personal rights of the employer and could also affect employees who were not under suspicion. A milder means would be the possibility of targeted surveillance of the suspected employee such as by a detective over a limited time period. When using surveillance devices to uncover crimes the employer should as far as possible narrow down the number of employees under suspicion. If a works council exists, it should be involved in the decisions as to whether the employer uses surveillance techniques (§ 87 para. 2 clause 6 BetrVG).
The right course of action!
Even if the temptation to use secret investigations is great for the employer: A successful clarification of the facts of the matter and therefore also the usability of the discoveries made in court proceedings require both the selection of the correct methods of investigation as well as compliance with any rights of participation of on the part of the works council. Only then can an employee be caught in the act!