The use of business systems for private purposes is subject to judicial disputes between employers and employees the online companies again. The Federal Labor Court now decided that even in the case of excessive use of the Internet as a serious breach of contract obligation an employer without notice basically not may terminate the employment relationship (AZ.: 2 AZR 200/06). In the case of a worker had brought a complaint of dismissal. In the review of the PC of the employee, the employer secured a number of picture and video files with erotic content. Via the history function of the browser, it was found that this PC erotic sites were obtained from while the workers discounted overtime these days.
This opinion of the judges was not sufficient to qualify for a behavior-related dismissal as socially justified within the meaning of paragraph 1 paragraph 2 dismissal protection law to meet. The highest German labour court raised the alternative said ordinary behavioral termination of the Landesarbeitsgericht also on and remitted to the further finding of fact on the Court. The extraordinary, so termination without notice for good cause, was seen in all instances as ill-founded. The Federal Labor Court performs also for the proper termination of the behavioral, that would have been a very dedicated finding of breach of duty on the use of the data, to determine loads and errors of the operational data systems, as well as the cost. The BAG is based on the existing case-law, according to which only under very serious exceptions an extraordinary as a proper behavioral cancellation without warning is effective. The judges made it clear in this regard that a negative forecast for social decidedly present is for behavioral cancellation in the framework of a comprehensive interests.
Clear rules required for employers and workers it is recommended one, within the framework of the “Internet and” E-Mail policy”clear rules for the use of the business service PC at work to reconcile. Only way employers make sure that the obligations of the worker’s behavior are laid down. Such behavior guidelines are effective only if compliance is regularly monitored. However, lacks such a scheme and the employer tacitly condone private use, this is tantamount to a permit for private use. Although a dismissal is even not excluded; It can, however, only a completely excessive use limited to, which as a result of fraud offences alludes that the employee indicates his performance as work, actually but only private surfing. To take into account is that the employer in considerable problems in the archiving of E-Mails will run into at a permit for the private use of E-Mail. Because he has to tax-related data according to the principles of data access and to the examination of digital documents (GDPdU) Archive, that an inspector by machine evaluable and optional can be accessed on tax-related data. Because business email is often commercial letters, the employer for that has to ensure that he complies with the requirements of this test on the one hand, on the other hand takes into account issues of data and personality protection. For workers, it is important that in case of cancellation of the foregoing principles are to check very carefully. Lacking a previous warning, an extraordinary as a behavioral ordinary termination should be often ineffective.