Right of co-determination when recording employee attendance times in Excel

The works council (“Betriebsrat”) has a say in the use of Microsoft Excel if the employer uses the program to record the attendance times of its employees.

Facts

The parties dispute the existence of a works council co-determination right in the use of Microsoft Excel to record employees' attendance times. Such co-determination right means that the works council needs to approve a measure planned by the employer before it is implemented. The works council co-determination is granted by law in cases of implementation and application of technical equipment intended to monitor the behavior or performance of employees. In the case under review the employer had previously always entered the employee attendance times manually. The objection of the employer, the information entered by hand would not be changed by the program, was unsuccessful in the result. Both the Labor Court and the State Labor Court upheld the works council's claim and prohibited the employer from recording attendance times in an Excel table without the works council's prior consent.

Reasons for the decision

The Federal Labor Court (“BAG”) also rejected the employer’s complaint of non-admission as unfounded. There were certainly terms capable of interpretation in the context of the legal question posed by the employer, such as "everyday software" and "certain de minimis thresholds". According to the BAG, however, these are not in need of clarification. The works council has a right of co-determination for every use of technical equipment intended to monitor the behavior or performance of employees. A data-processing system is designed to monitor behavior and performance when it collects or records individualized employee data itself, regardless of whether it is evaluated by the employer. According to the Federal Labor Court, this also includes the collection of information that is already available. Nothing else should apply to a standard program. Furthermore, no de minimis threshold can be assumed as a prerequisite for a right of co-determination, as this contradicts the purpose of the right of co-determination. The works council's right of co-determination is intended to protect the personal rights of employees that may be endangered by the employer's monitoring technology.

Notes for practice

With this decision, the BAG makes it clear that the works council also has a right of co-determination with regard to "everyday" standard software, provided that the employer enters information about its employees therein, even if there is no significant difference to manual recording. The existence of the sum function in Excel is sufficient for the definition as a technical monitoring device and thus the employer's intention of use still remains irrelevant. The use of mobile phones or e-mail programs, for example, is also subject to co-determination. In the course of continuous modernization, employers are urged to carefully check every technical modernization of data collection in the area of personnel for the requirement of prior co-determination, even if the data are not to be further processed.