The Federal Labour Court ruled on Thursday that evidence collected by a company through keystroke-tracking software could not be used to fire an employee, explaining that such surveillance violates workers’ personal rights.
The complainant had been working as a web developer at a media agency in North Rhine-Westphalia since 2011 when the company sent an email out in April 2015 explaining that employees’ complete “internet traffic” and use of the company computer systems would be logged and permanently saved. Company policy forbade private use of the computers.
The firm then installed keylogger software on company PCs to monitor keyboard strokes and regularly take screenshots.
Less than a month later, the complainant was called in to speak with his boss about what the company had discovered through the spying software. Based on their findings, they accused him of working for another company while at work, and of developing a computer game for them.
He was fired that same day.
The complainant claimed that he had indeed been programming a computer game and done other work for his father’s company, but argued that this was mostly only during his work breaks. He said the work only took about ten minutes out of his day, and that over the course of four months, he had only spent three hours total on this outside work.
So the programmer took his case to court, arguing that the evidence used against him had been collected illegally.
The Federal Labour Court agreed with this argument, stating in the ruling that the keylogger software was an unlawful way to control employees. The judges added that using such software could be legitimate if there was a concrete suspicion beforehand of a criminal offence or serious breach of work duties.
Therefore the court determined that because the evidence used to fire the employee had been obtained illicitly the programmer’s termination should now be void.
The court further said that the fact that the employee admitted to using the company computer for private purposes did not justify the circumstances of the firing.