Surveillance measures carried out by an executive compliance worker with respect to a co-worker can potentially lead to the former’s dismissal.
North Rhine-Westphalia, Germany -- (SBWIRE) -- 02/21/2013 -- GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com/en explain: Compliance managers ought to prevent violations of applicable law, in particular criminal offences of the company’s workers. If a compliance manager acts objectively contrary to the law and knew of the illegality of his conduct, then a dismissal may well be permitted according to the Berlin Labour Court in its judgment of 18 February 2010, Az. 38 Ca 12879/09.
However, the burden of proof lies with the employer if the party concerned has no legal training or other co-workers in his working group, particularly in the case of lawyers, would not have raised any concerns with respect to the measures. Notably, the employer must prove that the party concerned as a non-lawyer should have known better than his co-workers that certain surveillance measures are illegal.
The introduction of surveillance measures does not in itself represent a breach of data protection rules or other legal provisions that would justify a dismissal on grounds relating to the behaviour of the employee, since a compliance manager is thereby fulfilling the function of keeping his company away from harm.
Depending on how it is organized, and this also possibly includes surveillance by detectives , the surveillance of exchanged data (for example, email communications over the Internet) or the comparison of personal data can potentially come into question as surveillance measures.
The topic of compliance is gaining more and more importance in the public sphere, especially due to the many violations that have emerged. The inspection of data can, for instance, also constitute a breach of criminal law and be liable to prosecution.
According to the German Federal Data Protection Act, personal data may be collected, processed or used to shine light on criminal offences, if there is evidence that the party concerned committed the offence and this seemed necessary. However, in this context the rights and interests of the party concerned must also be observed.
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