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13 March 2019
After the sensational Facebook ruling rendered by the Federal Labour Court,(1) the discrepancy between rapid digitalisation and restrictive case law with regard to Section 87(I)(6) of the Works Constitution Act has once again become the focus of attention in a labour law dispute. The Hamburg Regional Labour Court recently addressed the question of whether a Twitter account maintained by an employer constitutes a technical device that is intended to monitor employees' performance and conduct.(2)
The employer operated multiplex cinemas in 30 locations. A company-wide Twitter account was used to keep customers up to date with offers and events. Like other social media channels, the Twitter account was used both for the open exchange of opinions on films and the implementation of marketing measures. The Twitter page included the functions 'reply', 'retweet' and 'mention'; these features allowed subscribers to:
Users could not deactivate these functions. Referring to Federal Labour Court case law regarding Facebook's feedback function, the responsible central works council asserted its codetermination right because the Twitter account could allow the employer to draw conclusions as to the conduct or performance of employees who posted messages. Therefore, the Twitter account was to be deactivated as the result of a cease-and-desist claim.
The Hamburg Labour Court rejected the cease-and-desist claim in an earlier ruling because Twitter has no analysis features that allow employers to draw conclusions about the conduct or performance of individual employees.(3) Therefore, employees are not exposed to the permanent pressure that comes with being monitored. Moreover, there are significant differences between Facebook and Twitter: Twitter only allows its users to post their own messages on their own page, but not on their employer's page; however, employers are usually prohibited from accessing their employees' private pages.
The Hamburg Regional Labor Court rejected the Hamburg Labour Court's line of argument. It based its decision on the fact that the Federal Labour Court ruling in the Facebook case can be applied to Twitter and that, therefore, the works council also has a codetermination right with regard to the reply function.
The sense and purpose of the codetermination right is to ensure that employees are exposed to the mental pressure exerted by technical monitoring devices only if the works council has equal codetermination rights. With regard to codetermination, whether the employer actually intends to monitor and indeed monitors its employees' performance is irrelevant.(4)
By setting up a Twitter account, an employer makes it possible to post messages in the first place. For the purpose of the provision, it is irrelevant where the posts are saved. The only decisive factor is that personal data relating to the employees' conduct that can be accessed at a later point in time are made accessible to third parties. In addition, neither the employer nor the employee can delete such data.
The Hamburg Regional Labour Court permitted an appeal owing to the fundamental significance of the case. At the end of their decision, the judges pointed out that there are fundamental differences between Twitter and Facebook; however, the question of how to assess this difference was answered by the Federal Labour Court.
Federal Labour Court case law shows no consistent pattern in this regard. The Federal Labour Court's ruling relating to Google Maps(5) was based on the required criterion of immediacy, meaning that the data must be collected and processed by the technical device itself to be subject to codetermination rights. The reply function on Twitter does not fulfil this requirement; however, the Hamburg Regional Labour Court did not take this into account.
The Heilbronn Labour Court had previously addressed the criterion of immediacy and stated that if an employer does not request users to post messages, codetermination rights are ruled out.(6)
This ruling seems to provide a better background for the use of a Twitter account than the Facebook ruling since the feedback function on Facebook is an optional add-in, whereas Twitter's reply function cannot be deactivated. In addition, it seems unrealistic that employers would independently read the private Twitter accounts of third parties in order to monitor the conduct or performance of their employees without having any reason to do so.
Moreover, as numerous employees of the 30 establishments in question could use these functions, it would have been impossible for the employer to determine who wrote the respective post. Regarding Facebook, the Federal Labour Court pointed out that no codetermination rights exist with regard to the use of a social media account, even if there are several admin rights.
The codetermination right under Section 87(I)(6) of the Works Constitution Act and the relevant Federal Labour Court case law date back to a period when digitalisation did not influence the procedures and organisation of businesses to such a great extent. Reforms and adjustments of the law and case law are urgently needed, as almost all IT applications (80%) are subject to codetermination owing to the broad range of criteria for codetermination. Entire value chains can come to a standstill if the works council blocks the often time-consuming negotiations regarding an IT works council agreement; the result of this is a competitive disadvantage for German companies compared with international competitors. Thus, the codetermination procedure regularly blocks technical innovations and thus the efficiency of companies in Germany.
During lively discussions on Twitter, it seems unrealistic that a company would need the works council's approval to be allowed to tweet while politicians do it constantly. Perhaps this decision – which is difficult to communicate to non-lawyers – will lead the legislature or the Federal Labour Court to consider the following reforms:
For further information on this topic please contact Gerlind Wisskirchen, Jan Peter Schiller or Jan Schwindling at CMS Hasche Sigle by telephone (+49 221 77 16 0) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.
(1) Decision 1 ABR 7/15 (13 December 2016). Available in German here.
(6) Decision of 8 June 2017. Available in German here.
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Jan Peter Schiller