Germany’s Mecklenburg-Western Pomerania Regional Labor Court Rules on Workplace Eavesdropping

Quick Hits

• A claim for damages based on termination-related fault may arise only if the employer’s serious breach of contract would have justified extraordinary termination without notice.
• An employer may be liable for misconduct among coworkers only if the employee acted as the employer’s vicarious agent, for example as a supervisor with authority to issue instructions, or if the conduct had a close factual connection to assigned job duties.
• Furthermore, the misconduct must have actually been the cause of the employee’s decision to resign.
• An employee’s extraordinary termination without notice must be received by the employer within two weeks after the employee becomes aware of the facts relevant to the termination.

The Case

The employee had been working shifts at a nursing home since 1987, most recently in the laundry department. In the summer of 2022, she and a coworker discovered a listening device there that had been hidden by a third coworker (Ms. B). Ms. B admitted to the incident and received a written warning. The employer changed the shift schedule in the laundry department so that the colleagues would no longer work together. In addition, the employer introduced a handover log for shift changes to prevent direct contact between the two. As a further measure, the employer commissioned an external mediator to resolve the conflict. However, the mediator’s attempt at mediation failed. As a result, the employee became permanently unable to work and, on March 11, 2024, resigned with immediate effect on grounds attributable to the employer, citing a medical certificate. On February 27, 2024, the plaintiff’s family physician certified that she suffered from a chronic adjustment disorder resulting from a workplace conflict, which prevented her from continuing to work for her employer. Subsequently, the plaintiff demanded approximately EUR 20,800 in damages and EUR 5,000 in compensation for pain and suffering from the employer. The Stralsund Labor Court dismissed the claim at first instance.

No Termination-Related Fault in Light of Adequate Crisis Management

The LAG upheld the dismissal of the complaint in its entirety. A claim for damages (pursuant to Section 628(2) of the German Civil Code (Bürgerliches Gesetzbuch (BGB)) requires misconduct on the part of the employer that would have justified an extraordinary termination without notice. This was lacking in the present case. The secret eavesdropping by the coworker could not be attributed to the employer. The coworker neither had authority to issue instructions to the plaintiff nor acted in connection with her job duties. Furthermore, the court found that the employer’s crisis management measures—separating shifts, maintaining a handover log, and engaging an external mediator—were sufficient to satisfy the employer’s duty of care toward its employees, even if the mediation ultimately proved unsuccessful. The court also clarified that the employer was not obligated to discharge the colleague who had eavesdropped: In principle, it is up to the employer to decide how to respond to conflicts, as long as the measures chosen are appropriate for resolving the conflict. In this case, the employer could reasonably assume this to be the case. Since the employer could not therefore be accused of any misconduct of its own, the claim for compensation for pain and suffering due to the mental illness was also unsuccessful.

Takeaways

Employers are obligated to protect their employees from health hazards (including psychological ones), bullying, discrimination, and other violations of personal rights. However, a claim for damages does not arise from every conflict among colleagues. In particular, employers are not directly liable for the conduct of employees who commit legal violations against other employees that are unrelated to business operations and outside their assigned duties. Rather, what is decisive is how an employer responds to breaches of duty that come to its attention. In practice, liability risks usually arise from an inadequate or delayed response.

The LAG’s decision illustrates that employer liability for coworker misconduct depends on attribution of the misconduct or on the employer’s own response after learning of the incident. In this case, the court considered the employer’s measures—shift separation, a handover log, and mediation—sufficient, and it did not require discharging the coworker who had secretly monitored the plaintiff.

Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will post updates on the Cross-Border, Germany, and Workplace Safety and Health blogs as additional information becomes available.

Daniela Schumann is a senior associate in the Berlin office of Ogletree Deakins.

Maximilian Gössling, a trainee lawyer in the Berlin office of Ogletree Deakins, contributed to this article.

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