LAG Cologne ( 7th Chamber ), judgement of 11.02.2025 - 7 Sa 635/23
The facts:
The plaintiff, a long-time ticket inspector for a Cologne public transport company, is at the centre of an employment dispute. The defendant (the employer) accuses him of serious intentional time fraud. The defendant initially became suspicious through employees of a security company who pointed out irregularities regarding the plaintiff's working hours. The defendant then commissioned a private investigator to monitor the plaintiff in order to get to the bottom of the allegations. The investigator conducted extensive surveillance, during which the plaintiff was observed engaging in private activities during his working hours - from meetings with his girlfriend to coffee stops and photo shoots. The employer then declared his dismissal for cause. The plaintiff immediately filed a wrongful termination suit and denied all allegations made against him. In particular, he requested a declaration that there was a prohibition on the use of evidence regarding the investigator's allegations, which he claimed violated his fundamental rights. The defendant filed a counterclaim, seeking, in particular, reimbursement from the plaintiff for the costs of the surveillance in the amount of approximately 21 thousand euros.
The decision:
The Cologne Chamber found the termination to be permissible and well-founded , and furthermore, the plaintiff had to bear the full costs of the surveillance. The court had to address three key questions in its decision: First, whether the time fraud could justify immediate termination. Second, whether the requested prohibition on the collection of evidence from the data collected by the detective agency actually existed, and whether the plaintiff was actually required to bear the costs incurred by the defendant, amounting to 21,000 euros.
Working time fraud:
According to Section 626 I of the German Civil Code (BGB), an employment relationship can be terminated without notice for "good cause" if there are facts which, after balancing the interests of all parties to the contract, make it unreasonable for the person terminating the employment relationship to continue. According to the case law of the Federal Labour Court, by intentionally committing working time fraud , an employee seriously breaches their duty of consideration arising from the employment relationship . The Cologne Labor Court (LAG) also shares this view in this case, viewing the total of 26 hours of documented working time fraud as a serious breach of trust and therefore as "good cause" within the meaning of Section 626 I of the BGB. Furthermore, like the Federal Labour Court (BAG), it demanded as a further prerequisite that working hours must be difficult for the employer to monitor . However, this is regularly the case for employees working in the field.
The prohibition on the use of evidence
However, the question arose as to whether the evidence presented by the detective agency could even be used in court. If there were a ban on the use of evidence, it would be difficult to present the facts justifying the termination. According to the Cologne Chamber, such a ban can generally exist if the presentation of evidence unjustifiably violates the plaintiff's fundamental rights . The plaintiff complained of an infringement of his general right of personality (APR) pursuant to Article 2 I in conjunction with Article 1 I of the Basic Law. This fundamental right gives citizens, among other things, the right to determine for themselves the extent to which personal circumstances and data may be collected and used. The judges made it clear in this regard that the actions of the detectives, which included taking photos of the plaintiff and attaching GPS transmitters to his car, were indeed sufficient to justify an infringement of this very fundamental right. Nevertheless, this interference was of only minor intensity as information was only collected during shift hours and on public transport, and thus, in practice, only what any passerby could have also perceived was documented. Consequently, according to the Higher Labour Court, there was no prohibition on the use of evidence.
damages
Finally, the question still had to be clarified as to whether the plaintiff was also obliged to pay the 21,000 euros spent on the detectives' work. In the Chamber's opinion, the employer's claim arises from Sections 280 I and 249 I of the German Civil Code (BGB). In doing so, the court followed the case law of the Federal Labor Court (BAG), according to which the employee must reimburse the employer for the necessary costs incurred by a detective due to a breach of employment contract if the employer assigns the surveillance of the employee to a detective based on concrete suspicion of an offence and the employee is convicted of an intentional breach of contract. In doing so, the employer must keep the costs incurred as low as possible and appropriately consider the interests of the injuring party , in accordance with the legal principle enshrined in Section 254 II of the German Civil Code (BGB). In the court's opinion, this requirement was met in the present case, and the costs for the detective agency must therefore be reimbursed by the plaintiff.
Conclusion and practical tips
A ruling by the Cologne Labor Court which is particularly important for employers.
It shows very clearly what options employers have to protect themselves against working time fraud. In particular, the option of demanding reimbursement of detective costs from the employee is an important tool for employers. However, it should be noted that breaches of the employment contract must actually occur for a claim for damages to be justified. If this tool is nevertheless used, care must be taken to always observe the legal principle of Section 254 II of the German Civil Code (BGB). This means that the employer is only entitled to reimbursement for measures which a reasonable, economically minded employer would have taken as not only expedient but also necessary to eliminate the disruption or prevent damage, given the circumstances of the individual case.
