European Restructuring Monitor (ERM)
Eurofound's ERM database on restructuring-related legal regulations provides information on regulations in the Member States of the European Union and Norway which are explicitly or implicitly linked to anticipating and managing change.
Works Constitution Act: Section 87 (1) 6., (2) Federal Data Protection Act: Section 26 (1) - (8) Telecommunications-Telemedia Data Protection Act: Paragraph 3
LAST UPDATE 2023 - THIS CONTENT WILL NOT BE UPDATED
The Works Constitution Act in its revised version of 1972 foresees co-determination rights for works councils on a number of issues in so far as they are not prescribed by legislation or collective agreement. Among others, works councils have a right of co-determination regarding the introduction and use of technical devices designed to monitor the behaviour or performance of the employees. This normally takes the form of a written agreement between the employer and the works council. If no agreement can be reached, a conciliation committee makes a decision.
This right to co-determination is, at least in form, comprehensive, as almost all digital technologies collect data and are therefore suitable for monitoring employees. Further, related rights of works councils concern - among others - the right to be informed and consulted in due time in case of any plans regarding technical plants as well as operations including the use of artificial intelligence (Section 90 of the Works Constitution Act).
According to the Federal Data Protection Act, the personal data of employees may be processed for employment-related purposes insofar this is necessary for hiring decisions or, after hiring, for carrying out or terminating the employment contract or to exercise rights and obligations of employees’ representation laid down by law or by collective agreements or other agreements between the employer and staff council. Employees’ personal data may be processed to detect crimes only if there is a documented reason to believe the data subject has committed a crime while employed, the processing of such data is necessary to investigate the crime and is not outweighed by the data subject’s legitimate interest in not processing the data, and in particular the type and extent are not disproportionate to the reason. If personal data of employees is processed on the basis of consent, then the employee’s level of dependence in the employment relationship and the circumstances under which consent was given shall be taken into account in assessing whether such consent was freely given (Section 26 of the Federal Data Protection Act).
Also for employees the principle of telecommunications secrecy for private communication according to the Telecommunications Telemedia Data Protection Act applies at the workplace (Paragraph 3 of the Telecommunications Telemedia Data Protection Act).
Eurofound (2023), Germany: Employee monitoring and surveillance, Restructuring legislation database, Dublin, https://apps.eurofound.europa.eu/legislationdb/employee-monitoring-and-surveillance/germany
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