A Guide To Digital Technology And The Works Council In German Workplaces

Author:Mr Tomislav Santon (Kliemt.HR Lawyers)
Profession:Ius Laboris

How far do works councils in Germany get a say on the introduction of new technology with monitoring capability? This article provides some guidance.

The speed of digital change is remarkable. In order to remain competitive, companies need to drive and implement the necessary adjustments quickly. However, the decision to introduce new technologies is not solely up to the employer. The right of co-determination under s87(1) no. 6 of the Industrial Relations Act gives the works council far-reaching scope for participation in company decision-making. Our article explains to what extent a rapid digitalisation of operational processes is possible against this background.

German companies can't opt out of digital progress

The galloping rate of mechanisation of all economic sectors demands a lot from organisations. They must adapt to rapid change as quickly as possible, for example by using innovative hardware, expanding a digital infrastructure and implementing intelligent software. Otherwise, they are threatened with disadvantages in international competition.

Digital change also has a considerable impact on the world of work. For example, 80 % of IT applications can be used to draw conclusions about the performance or behavioural data of their users. But is the fact this technology can be used for employee monitoring sufficient to trigger a right of co-determination for the works council? Case law says it can: this is justified by the protection of the personal rights of employees.

'Suitable' for monitoring: how far does it go?

According to s87(1) No. 6 of the Industrial Relations Act, a co-determination right exists on the introduction of technical equipment which is 'designed' to monitor the conduct or performance of employees. However, despite this wording, the Federal Labour Court interprets the right of co-determination broadly. It is sufficient that the equipment is objectively suitable for monitoring: the employer does not need to have an intention to monitor. Case law has recently upheld, for example, a right of co-determination with respect to the use of an Outlook calendar and an Excel spreadsheet and the operation of a Facebook page and a Twitter account.

Employer's interests and immediacy

However, the Federal Labour Court has also pointed out ways in which this can lead to a restriction of co-determination rights.

In its 'Facebook' decision, the Federal Labour Court emphasised that the right of co-determination is aimed at...

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