Germany: employer fined for spying on sick employee

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A German employer who hired a private detective to check whether a sick employee was really unfit for work has been fined for violating the employee’s human rights.  After the ruling by the German Federal Labour Court, the employee was awarded compensation of €1,000 for immaterial damage – significantly less than the €10,500 initially claimed. The case involved a female employee who had reported sick for about two months, initially due to bronchial disease and then later because of a slipped disc.  During her absence she submitted six certificates of incapacity for work from two different doctors (the first a general practitioner, the second a medical specialist).  After she reported a slipped disc, the employer assumed the employee had feigned her illness and hired a private detective to observe the employee.  Despite observing the employee for around two weeks, the private detective was unable to provide conclusive evidence that the injury was simulated. In awarding compensation to the employee, the Federal Court ruled that observation of an employee by a private detective is illegal when the employer’s suspicion is not based on concrete evidence of a breach of duty.  As such, the illegal observation is a violation of the employee’s human rights and justifies compensation for immaterial damage.  However, as the observation was classified as ‘normal’ by the Court, compensation of €1,000 was deemed to be adequate.

Resources

• Date of the decision: 19/02/2015, file reference: 8 AZR 1007/13
• Federal Labour Court decision

Further information

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