Sec. 87 I No. 6 grants works councils a right for co-determination with respect to the implementation and use of any technical devices that allow for monitoring of employees.
Over the last couple of years the German courts have slightly changed their view on the interpretation of this provision in the context of social media: In the past, this was usually interpreted in a way that the monitoring needed to be conducted by the device itself e.g. a standard example would be a CCTV-system, even if implemented for security reasons it also captures the attendance and actions of employees. Decisive was the fact that the level of control is much higher compared to role of supervisor. On the other hand, it was also established case law that a tool such as “Google maps”, which could allow the cross-referencing of distances on an expense report, could only be used manually by a human being so that it would not trigger works councils’ co-determination rights.
Already in 2016, the German Federal Employment Court had to deal with the question of “technical monitoring” by a company’s Facebook account. In this case, the court started a two-fold argumentation that (i) Facebook would as any other IT-system allow for monitoring of the account administrators but (ii) also of any other employees by granting the Facebook users a platform to publish comments on the company’s Facebook site, allowing also to comment on the company’s employees. In the end, the court decided on a co-determination right of the works councils in so far as it is not possible to deactivate the comment function on the company’s Facebook site.
This argument was now picked up again in a recent decision dealing with a company’s Twitter account with the difference that Twitter does not allow the deactivation of the comment function but also, other than on Facebook, that such comments are not published on a specific individual company site but on the general Twitter platform.
Court confirmed now that even if such a company Twitter account does not provide for a specific company site for such announcements and comments, the fact that potential comments on employees could be published to a large social media public, would create control pressure which triggers the works council’s co-determination rights.
What is new in this decision? It is no longer the system that controls, but the broader public that may control using a system that is also used by the company. In this respect, the control pressure is no longer raised by the technical device but the internet or social media public. Pursuant to the court decision, it is not required that the company explicitly asks its followers or other platform users to comment on its employee, but already the fact that the company participates in social media, whose common purpose is the interaction with other users is sufficient to trigger the works council’s co-determination right with respect to the use of the company’s social media’s account.
Employer monitoring already is a sensible topic that is often raised by works councils but employers should be aware of the tendency of German courts to expand its scope of application also in areas such as marketing, where HR is usually not even involved in its implementation (i.e. the opening of a company account).