LAG Cologne (7th chamber), Judgement from the 11.02.2025 - 7 Sa 635/23
The facts of the case:
The plaintiff, a long-standing ticket inspector for a Cologne-based transport company, is at the centre of an employment law dispute. He is accused by the defendant (the employer) of serious intentional working time fraud. The defendant received initial suspicion from employees of a security company who pointed out irregularities in relation to the plaintiff's working hours. The defendant then commissioned a detective agency to monitor the plaintiff in order to get to the bottom of the allegation. The detective agency carried out extensive surveillance, during which the plaintiff was observed engaging in private activities during his working hours - from meetings with his girlfriend to coffee breaks and photo shoots. The employer then declared extraordinary dismissal. The plaintiff immediately filed an action for unfair dismissal and denied all the allegations made against him. In particular, he applied for a declaratory judgement that there was a prohibition on the use of evidence with regard to the factual allegations made by the detective agency, which had violated his fundamental rights. The defendant filed a counterclaim and above all requested compensation from the plaintiff for the costs of the surveillance totalling approx. 21 thousand euros.
The decision:
The chamber in Cologne stated, the cancellation is permissible and justifiedFurthermore, the plaintiff had to bear the full costs of the surveillance. In its decision, the court had to deal with three key questions. Firstly, whether the working time fraud could justify termination without notice. Secondly, whether the requested ban on gathering evidence of the data collected by the detective agency actually existed and whether the plaintiff actually had to bear the costs of 21 thousand euros used by the defendant.
Working time fraud:
The employment relationship can be terminated in accordance with §626 I BGB "important reason" can be terminated without notice if there are facts on the basis of which the terminating party cannot reasonably be expected to continue the employment relationship after weighing up the interests of the parties to the contract. According to the case law of the Federal Labour Court, the employee violates the wilful working time fraud in a serious way his Duties of consideration arising from the employment relationship. This view is also shared by the Cologne Higher Labour Court, which found that the total of 26 hours of documented working time fraud as a serious breach of trust and therefore considered this to be an "important reason" within the meaning of Section 626 I BGB. In addition, like the BAG, it demanded as a further prerequisite that the working hours of the employer difficult to control may be. However, this is regularly the case for employees working in the field.
The ban on the utilisation of evidence
However, the question arose as to whether the evidence presented by the detective agency could be used in court at all. If there is a prohibition on the use of evidence, it would be difficult to present the facts justifying the cancellation. According to the Cologne Chamber, such a prohibition may exist in any case if the evidence would jeopardise the plaintiff's rights. Fundamental rights unjustifiably violated. The plaintiff complained of an interference with his General personal rights (APR) pursuant to Art. 2 I in conjunction with Art. 1 I GG. Among other things, this fundamental right gives citizens the right to determine the extent to which personal circumstances and data can be collected and utilised. In this regard, the judges clarified that the detectives' actions, including taking photos of the plaintiff and attaching GPS transmitters to his car, were indeed suitable to justify an encroachment on this fundamental right. Nevertheless, this interference was only of low intensity since information was only collected during shift times and on public transport, meaning that practically only that which any passer-by could also have perceived was documented. Consequently, according to the LAG, there was no prohibition on the utilisation of evidence.
Compensation for damages
Finally, the question had to be clarified as to whether the plaintiff also had to pay the 21 thousand euros spent on the activities of the detectives. In the opinion of the court, the employer's claim follows from §§280 I, 249 I BGB. In doing so, the court followed the case law of the Federal Labour Court, according to which the employee is entitled to compensation for the breach of contractual obligations the employer for the necessary costs incurred as a result of the work of a detective. must reimburse the costsif the employer, due to a concrete suspicion of an offence the surveillance of the employee to a detective and the employee is convicted of an intentional breach of contract. The employer must keep the costs incurred as low as possible in accordance with the legal principle enshrined in Section 254 II of the German Civil Code (BGB) and the Interests of the injuring party must be taken into account appropriately. In the opinion of the court, this requirement was met in the present case and the costs for the detective agency are therefore to be reimbursed by the plaintiff.
Conclusion and practical tips
A judgement of the LAG Cologne which is particularly exciting for employers.
It shows very well what options employers have to protect themselves against working time fraud. In particular, the possibility of being able to demand reimbursement of the costs of detectives from the employee is an important instrument for employers. Nevertheless, it should be noted that there are also there must actually be breaches of the employment contractso that a claim for damages is justified. If this instrument is nevertheless used, it must be ensured that the legal concept of §254 II BGB is always observed. This means that the employer is only entitled to reimbursement for measures that a reasonable, economically-minded employer would not only have taken as appropriate but also as necessary in the circumstances of the individual case to remedy the disruption or prevent damage.
