by Thomas Müller-Bonanni and Jan Schell
Freshfields Bruckhaus Deringer
When conducting internal investigations at the workplace, German employers must observe privacy laws, co-determination laws of the works council and statutory deadlines. Following the right process is crucial for the success of investigation measures.
What employers may and may not screen:
Investigations normally begin with a comprehensive review of files, records and other documents. This is legally not an issue as long as such files, records and other documents are solely business related. However, because of the employee’s privacy rights, a review of private correspondence normally requires the employee’s prior consent. Evidence that the employer has gathered in violation of the employee’s privacy rights may be disregarded by the courts. This may, for example, turn out to be an obstacle to a comprehensive review of e-mail correspondence where the employer permits the use of the company’s e-mail system for private purposes. It is therefore advisable to provide in the company’s e-mail policy that, by using the company system for private purposes, the employees consent to a review of their correspondence in connection with internal investigations. In absence of the employee’s consent, a review of private correspondence may be lawful where there is evidence of criminal behaviour.
Where the works council will have to be involved:
Where a works council has been established, the council may have to be informed and consulted about the investigation measures. This is because the works council has the right and the obligation to supervise that the employer does not infringe the employee’s rights. Specific measures may even require the works council's consent. For example, a screening of e-mails by electronic means (searching the data base for key words) requires works council consent, unless there is an agreement with the works council in place permitting the screening. Precautionary measures such as a careful drafting of policies and works council agreements may turn out to be crucial in investigation scenarios. Non-observance of the works council’s rights may not only make the evidence impermissible but may also be sanctioned as a public offence.
What deadlines employers must bear in mind:
What deadlines employers must bear in mind:
The outcome of an investigation may justify disciplinary measures including the employee’s termination. In this context it is essential to comply with the relevant deadlines. For example, summary dismissal can only be issued within two weeks after the employer has learned of facts on which it wants to ground the employee’s termination. This deadline does not run as long as the employer is investigating the allegations, but German courts have repeatedly held that the employer must conduct the investigation as quickly as possible. Unnecessary delays in the investigation or superfluous double-checking may therefore make the employee’s termination void. Also, where a works council exists, the employer needs to spare time for the necessary involvement of the council within the two-week deadline. In addition, the employee may have to be heard prior to the disciplinary measures (e.g. warning, dismissal etc.). A dismissal based on the mere suspicion of serious misconduct (e.g. a criminal offence) is generally illegal without a prior hearing of the employee.
