Monitoring in the workplace
Monitoring potential mostly does not arise on purpose. It arises on systems bought for something else, and whatever can be reduced technically nobody has to justify legally afterwards.
A ticket system measures handling times, a proxy logs connections, access control sets timestamps. None of them was bought in order to monitor anyone. That their data together composes a picture of individual employees usually becomes apparent only once the works council objects to the rollout or a dismissal reaches the labour court.
An intention to monitor does not matter. Section 87(1) no. 6 BetrVG attaches to the objective capability of the device, data protection law to the processing.
Not every system that produces data is capable of monitoring
Whether the works council has to be involved is decided by the capability of the system. Section 87(1) no. 6 BetrVG speaks of technical devices designed to monitor conduct or performance. The labour courts read this as objective capability, and that capability presupposes three circumstances.
Step 1: Attribution
The data can be attributed to an individual person, whether directly or through an identifier.
Step 2: Access
The employer is in fact able to access it. Where it sits solely with a body the employer cannot reach, capability is absent.
Step 3: Meaning
The data permits a statement about conduct or performance. Mere operating data without that bearing does not suffice.
Where one of the three is missing, co-determination as a rule does not arise. Storage, by contrast, is not among them. On 16 July 2024 the Federal Labour Court subjected a headset system to co-determination that let supervisors listen in live, even though the conversations were neither recorded nor stored (1 ABR 16/23).
Technical limits work differently from organisational ones
How the matter can be made smaller without giving up the system turns on the kind of restriction. Every technical restriction reduces the duty to involve the works council, the burden of justification towards the authority and the exposure in a dispute at once. Organisational ones do not achieve that to the same degree.
Reduces the potential
- Aggregation that cannot be traced back to the individual
- Pseudonymisation with the key held separately
- Access confined to roles outside the reporting line
- Short retention periods enforced by the system itself
- Evaluation only after approval under a four-eyes rule
Does not reduce it
- An internal instruction that nobody may evaluate the data
- Dropping a standard report while raw data access continues
- Aggregation across units holding only a few people
- A vendor assurance that the function will not be used
For the data protection balancing exercise a documented organisational restriction nonetheless carries weight, because it limits the actual interference.
What is left over is settled with the works council
Whether the works agreement settles everything is decided only once a court reads it. For the remaining potential the works council has to be involved, and the processing needs a legal basis. Section 26(4) BDSG allows a collective agreement for that and obliges the negotiating parties to observe Article 88(2) GDPR.
The review does not stop at the works agreement. Whether section 26(1) BDSG itself meets the requirements of Article 88 GDPR is not conclusively settled (CJEU, 30 March 2023, C-34/21).
27.07.2017
BAG 2 AZR 681/16
A software keylogger without a concrete, fact-based suspicion is not permitted.
30.03.2023
CJEU C-34/21
National provisions on employee data protection are left unapplied where they fall short of Article 88(2) GDPR.
29.06.2023
BAG 2 AZR 296/22
The parties to a works agreement cannot create a bar on evidence beyond the Code of Civil Procedure.
16.07.2024
BAG 1 ABR 16/23
Co-determination applies without storage where supervisors can listen in live.
19.12.2024
CJEU C-65/23
The necessity of a works agreement is subject to full judicial review.
A suspicion follows its own rules
What may be examined where a concrete suspicion exists has to be settled under time pressure. Section 26(1) sentence 2 BDSG requires documented factual indications of a crime committed in the employment relationship, that the examination be necessary, and a balancing exercise in favour of the measure. The Federal Labour Court confirmed that threshold for a software keylogger and rejected deployment without cause (27 July 2017, 2 AZR 681/16).
What matters is the sequence in time. Documentation created only after the examination is open to the suspicion in court of having been written towards the result. Sensibly the works agreement settles the procedure in advance.
- The factual indications are recorded in writing before the examination, with a date
- The suspicion is directed at a particular person and not at the workforce
- It is recorded which less intrusive measure was ruled out and why
- The scope of the examination is cut to the suspicion and limited
- The balancing exercise is documented before anyone looks into the data
How we help
- Before procurementWe assess the potential along the three circumstances and set out the requirements for the vendor before the contract is signed.
- The system is already runningWe survey the evaluations in operation, reduce technically wherever it costs no functionality, and renegotiate the works agreement.
- Where there is a suspicionWe accompany the examination from documenting the indications through the hearing to the dismissal.
Not covered here is the public sector, where the staff representation acts take the place of the Works Constitution Act.
A suspicion in the business, and the clock running?
Get in touch before anything is examined. The order of steps decides the case later.
Get in touch nowFrequently asked questions
How do we tell whether a system has monitoring potential?
From three circumstances that have to come together. The data must be attributable to an individual, the employer must be able to access it, and it must permit a statement about conduct or performance. Where one of them is missing, co-determination under section 87(1) no. 6 BetrVG as a rule does not arise. An intention to monitor, by contrast, is irrelevant, and so is storage.
Is an internal instruction that nobody may evaluate the data enough?
Not for co-determination, which attaches to the objective capability of the device, and an instruction changes nothing about what the system can do. For the data protection balancing exercise a documented organisational restriction nonetheless carries weight, because it limits the interference. Anyone wanting to remove the potential has to do so technically.
Is it enough to display evaluations only in aggregate?
Only where the aggregation cannot be reversed. A departmental figure covering three people permits conclusions about the individual and to that extent does not remove the potential. What further matters is whether the raw data remains available alongside and who can access it, since the display is not the system.
The works council has agreed. Are we safe?
Only in relation to the works council. On 19 December 2024 the Court of Justice of the European Union held that a collective agreement under Article 88 GDPR must nonetheless comply with Article 5, Article 6(1) and Article 9 GDPR, and that the national court reviews necessity in full (C-65/23). Where a clause fails that review, the processing based on it loses its foundation.
Is section 26(1) BDSG enough as a legal basis?
That is not conclusively settled. On 30 March 2023 the Court of Justice of the European Union held that national provisions on employee data protection must be left unapplied where they do not observe the requirements of Article 88(1) and (2) GDPR, unless they at the same time constitute a legal basis under Article 6(3) GDPR (C-34/21). Anyone relying on section 26(1) BDSG alone is better advised to document the balancing exercise so that it would also hold up directly under Article 6(1) GDPR.
We have a concrete suspicion. May we now examine the data?
On narrow conditions. Section 26(1) sentence 2 BDSG requires documented factual indications of a crime committed in the employment relationship, that the examination be necessary, and a balancing exercise that does not come out against the person concerned. What matters is the sequence in time. Documentation supplied afterwards is open to the suspicion in court of having been written towards the result.
Does this apply to AI-supported systems as well?
In principle yes, and further participation rights arise there, in particular the involvement of an expert under section 80(3) sentence 2 BetrVG and the information duty under Art. 26(7) AI Act. The use of AI in the workplace is covered by co-determination on AI.