Working Environment 4.0 and German Labour Law
By Prof Dr Renate Dendorfer-Ditges, DITGES Rechtsanwälte Wirtschaftsprüfer Steuerberater
Social Media, Web 2.0, Facebook or Twitter – even during working hours, employees make use of various internet applications. Under German labour law, the employer solely decides on the scope of media usage. If the employer does not permit the usage of social media, or if the employee exceeds the time allocated for private “surfing” (e.g. breaks, before and after working hours), such behaviour is regarded as a violation of obligations.
In consequence to such violation, the employer is entitled to give a written warning. Repeated violations can lead to a dismissal with notice on grounds of bad conduct or – in extreme cases – to a dismissal without notice.
The same procedure applies in cases the employee publishes – with or without intention – internal information, employer-related insults, untruths or defamatory criticism on the Web 2.0. The work-agreement obliges the employee to considerate respect and discretion. Whilst the right to free speech limits this obligation, this limit is easily exceeded.
Numerous companies have installed whistleblowing-systems that oblige employees to report on any misconduct of other employees. A general obligation to report can only be established within the working-agreement or companyagreements. If the employee addresses the public about misconduct without notifying his employer prior, such behaviour can be considered as material grounds for dismissal. As for recruiting, human resource departments more regularly collect information on their applicants from Google and LinkedIn. As long as information is publicly accessible on the internet, it can be used by the employer – without violating data protection laws. Different to that is the case of leisure-orientated networks, such as Facebook. Data protection laws prohibit the usage of this kind of information.
Digital progress allows the employee to be more flexible as to work time and location. Even complex production processes can be handled anywhere and at any time of the day. Laws on working hours often do not hold up to the actual demand. Maximum working hours, minimum rest periods, rules on breaks, night-shifts, working Sundays and bank holidays, as well as on-call duty are to be reviewed by legislation.
“Crowdworking“, meaning the tender for work via web-based platforms, enables location-independent work. Workforce shortages can be compensated and order-peaks can be dealt with flexibly. It is yet unclear how crowdworkers are to be classified in terms of labour law, as they are not part of the customer’s employment structure. The laws on pseudo self-employment need to be reviewed and fit to the standards of the Working Environment 4.0.
The worker’s participation through work councils and employee’s representatives also needs to be reshaped in this digital working environment. Globally connected IT-systems lead to The introduction of new technologies is tied to worker’s participation, if objectively being used to supervise employee’s performance. This can slow down or even restrict technical progress in companies, as digital systems enable inevitably the recording and evaluating of work and performance behaviour.
The challenges for labour law in times of the Working Environment 4.0 are substantial. Legislation and labour-courts must take changing work and living conditions into account by applying and passing laws flexibly and according to the changing reality of professional life.
Prof Dr Renate Dendorfer-DitgesDITGES PartGmbB Rechtsanwälte Wirtschaftsprüfer Steuerberater, Bonn, Germany
T: +49 228 6046010
Prof Dr Renate Dendorfer-Ditges is partner at DITGES PartGmbB, admitted to the German and New York bars. Her expertise covers all areas of dispute resolution, especially arbitration and mediation.
DITGES is a well-established law firm in Bonn. DITGES offers strong expertise in the areas of bank law, tax law, corporate law, labour and employment as well as for all methods of dispute resolution.
Published: May 2017 l Photo: agcreativelab - Fotolia.com