Some employers resort to drastic measures to control employees who report sick. But are private spies also allowed?
It’s always a topic of discussion in companies: Is an employee really sick, or is he just constantly acting up? This is sometimes not so easy to prove, which is why some employers take very unusual measures.
One of them is the use of a private detective, who stalks the employee and use photos to provide evidence of what the “target person” does while on sick leave.
Private detective when reporting sick: These are the legal requirements
In short: monitoring employees in the event of a doubtful incapacity to work is actually legal under strict guidelines. The Federal Labor Court gives an important guiding principle to:
“If an employer has an employee monitored by a detective agency because of the suspicion of feigned incapacity for work and the agency documents the employee’s visible state of health, this is the processing of health data within the meaning of the General Data Protection Regulation.”
This can only be permissible if
- the evidentiary value of the medical certificate of incapacity for work is shaken and
- an examination by the medical service of the health insurance company (MDK) is not possible or
- The involvement of the MDK cannot objectively be expected to provide any clarification
But: When selecting investigative measures, employers must take into account the personal rights of employees and thus also data protection.
Dr. advises against spying on employees by employers. Till Bender, lawyer at DGB Legal Protection, from. “If it is not possible to comply with the high legal hurdles, employees can demand compensation for the unauthorized surveillance.” He had that told ZDFheute.
Companies must therefore always choose the mildest possible means. Otherwise Employees have the opportunity to claim compensation.
That’s what happened in this specific case
In the specific case about which this Federal Labor Court decided in July 2024the employment relationship had already broken down for some time. Initially, the company attempted to properly terminate the employee.
This didn’t work. After a subsequent termination with a change of residence and permanent office presence, which the employee unsuccessfully fought against, he had to reluctantly accept the new position.
However, at the start of his new job, the man called in sick for a long time – a certificate of incapacity for work was submitted from a specialist.
However, based on the previous history, the company suspected that the leg injury was faked. Photos on social media showed the man doing physical activities.
That’s why the employee became observed by detectives for around a weekwhere he carried out craft work on his property. The detective agency’s results were then presented to the employee.
The man sued the employer and ultimately received non-material damages of 1,500 euros.
But what’s exciting is the following: An employee on sick leave could even do a different or identical job at another company without this ruling out the possibility of being unable to work.
One reason for this could be a sick leave due to bullying that he was not exposed to in another company, explains Dr. Bender.
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