Termination of employment relationship due to private internet use

A dismissal for reasons of conduct is socially justified under section 1(2) of the KSchG if the employee significantly, usually culpably, breaches his or her duties under the employment contract.

Even if private use of the internet in the workplace is not prohibited, it may constitute such a significant breach of duty and entitle the employer to terminate the employment relationship without prior warning.

Whether it has the weight required for a dismissal depends, among other things, on its extent, the possibly associated missing of paid working time or a risk of damage to the employer's reputation caused by the type of use.
In the present case, the plaintiff had been employed by the defendant as a site manager since 1999. For his work, he had a company PC at his disposal, which he did not use alone and for whose use the defendant had not made any specifications. During a check of the PC, the defendant discovered that Internet pages with predominantly erotic or pornographic content were frequently accessed from the PC and that image files with such content had been saved. In a letter dated December 6, 2004, the defendant terminated the employment relationship with due notice without having given the plaintiff any prior warning.
In his action for protection against dismissal, the plaintiff challenged this termination and denied the allegations. In particular, the defendant claimed that the plaintiff had worked overtime to make up for the work not completed during private Internet use and had also received remuneration for this.
The Labor Court upheld the claim. On appeal by the defendant, the Regional Labor Court dismissed the action. The plaintiff's appeal was successful and led to the case being referred back to the Regional Labor Court for further fact-finding. Whether the plaintiff used the Internet during working hours for private purposes in a manner relevant to termination or also committed other breaches of duty in connection with such use could not yet be conclusively assessed due to the lack of corresponding factual findings by the Regional Labor Court.

Source: Federal Labor Court, Judgment of May 31, 2007- 2 AZR 200/06 -
Previous instance: LAG Rhineland-Palatinate, judgment of September 8, 2005 - 6 Sa 311/05 -

As the above case shows, if the private use of the internet is too intensive or if there is a risk of damage to the employer's reputation caused by the type of use, there is a risk of dismissal for conduct.

We therefore advise you to use the internet privately in the company only to a very limited extent, even if private use of the internet in the company is expressly permitted.

Repeated, intensive and long surfing on the internet should therefore not be carried out from the workplace. Especially frequent visits to internet sites such as eBay, Amazon and similar sites should be avoided, as a visit to these internet sites speaks for a purely private use and makes it easy to prove a private use of the internet during working hours.

Accessing websites with pornographic, racist or other content that could be contrary to the employer's business interests should also be avoided at all costs. 

If you would like legal advice on the above topic, on other topics of intellectual property law, IT law or other areas of civil law, the Goldberg lawyers will be happy to assist you.

Of course, you can contact us by e-mail via the e-mail address info@goldberg.de .

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Source: Press release of the Federal Network Agency of 28.8.2007

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