LAG Cologne (7th Chamber), judgement of 11.02.2025 - 7 Sa 635/23
Facts
The plaintiff was employed for many years as a ticket inspector at a Cologne transport company. The defendant employer accused him of wilful working time fraud. The suspicion was based on information from employees of a contracted security service who drew attention to irregularities in the plaintiff's working hours.
For further clarification, the employer commissioned a detective agency to monitor the plaintiff. As part of this surveillance, it was established that the plaintiff was engaged in private activities during his working hours, including meetings with his partner, visits to cafés and private photo shoots. A total of around 26 hours of documented working time fraud were found.
The employer then gave notice of termination without notice. The plaintiff filed a Ruling of the Federal Labor Court, denied the allegations and also applied for a declaration that the findings obtained by the detective agency were subject to a ban on the utilisation of evidence as they violated his fundamental rights. The employer filed a counterclaim and demanded reimbursement of the detective agency's costs totalling around 21,000 euros.
Decision
The Cologne Regional Labour Court deemed the termination without notice to be effective and justified. It also ordered the plaintiff to bear the full costs of the monitoring.
The court essentially had to clarify three questions:
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Whether the established working time fraud justifies termination without notice,
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whether the detective agency's findings are subject to a ban on the utilisation of evidence,
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whether the plaintiff has to reimburse the detective costs.
Working time fraud as grounds for dismissal
According to Section 626 (1) BGB, an employment relationship can be terminated without notice for good cause if there are facts which, taking into account all circumstances and weighing up the interests of both parties, make the continuation of the employment relationship unreasonable.
In accordance with the case law of the Federal Labour Court, the Cologne Higher Labour Court clarified that deliberate working time fraud constitutes a serious breach of the duty of consideration under the employment contract. The total of 26 hours found in this case was to be regarded as a serious breach of trust and thus fulfils the elements of an important reason within the meaning of Section 626 (1) BGB.
In addition, case law requires that the working hours can only be monitored by the employer to a limited extent. The court considered this requirement to be regularly met in the case of field service activities - such as that of a ticket inspector.
No ban on the utilisation of evidence
The court also examined whether the data collected by the detective agency could be utilised in the dismissal protection proceedings. A ban on the utilisation of evidence can be considered if the collection of evidence violates the employee's fundamental rights in an unjustified manner.
The plaintiff invoked a violation of his general right of personality under Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG. Art. 1 para. 1 GG, in particular the right to informational self-determination. The court recognised that surveillance - including photography and GPS monitoring - fundamentally constitutes an infringement of this fundamental right.
However, this intrusion was only of low intensity. The data collection was limited to working hours and took place in public spaces and on public transport. Ultimately, only that which would have been perceptible to uninvolved third parties was recorded. Against this background, the Cologne Higher Labour Court denied a ban on the use of evidence.
Reimbursement of detective costs
Finally, the court also affirmed the employer's claim for reimbursement of the detective costs in the amount of around 21,000 euros. The basis for the claim was based on Sections 280 (1), 249 (1) BGB.
Referring to the case law of the Federal Labour Court, the LAG stated that an employee must reimburse the employer for the necessary costs of a detective agency if:
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there is a concrete suspicion of a serious breach of duty,
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the surveillance is necessary for reconnaissance,
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and the suspicion of a wilful breach of contract is confirmed.
In doing so, the employer must minimise the damage and give due consideration to the interests of the employee (Section 254 (2) BGB). The court considered these requirements to be fulfilled in the specific case, meaning that the plaintiff had to bear the costs.
Conclusion and practical advice
The decision of the Regional Labour Court Cologne is of considerable practical importance for employers. It makes it clear that wilful working time fraud can justify dismissal without notice and that covert surveillance is also permissible under strict conditions.
Of particular relevance is the clarification that investigator costs can be passed on to the employee if there is a concrete suspicion and this is confirmed. However, employers must strictly observe the principle of proportionality and the duty to minimise damage. Only those measures that a reasonable, economically minded employer could consider necessary and appropriate in the specific individual case are eligible for reimbursement.
