In the course of rapid technological change, more and more companies are turning to social media as a communication platform. For example, Facebook, Twitter and LinkedIn have become an integral part of the daily lives of many employers. But can employers connect with the outside world ‘just like that’ via social media, or does the works council or staff council have to be involved? The Berlin Administrative Court recently ruled that the introduction and use of social media is subject to codetermination by the staff council if a comment function is activated (see VG Berlin v. 29.05.2020 – VG 72 K 7.19 PVB).
The employer, a public corporation, operated two Facebook pages, one Instagram and one Twitter account. The use of Facebook and Twitter was aimed at recruiting junior and skilled staff as well as general press and public relations. Instagram was used to attract the interest of potential trainees and students. All platforms were set up to allow users to comment on posts made by the employer. Subsequently, the staff council applied to the Administrative Court for a declaration that it was entitled to a right of codetermination in view of the provision of the comment function on the pages and accounts operated by the employer.
The Administrative Court found that the staff council was entitled to a right of co-determination with regard to the introduction and use of the comment function on social media such as Facebook, Instagram or Twitter. In justification, it referred to the case law of the Federal Labour Court on the right of codetermination under s87(1)(6) of the Works Constitution Act, which is almost identical in wording to s75( 3)(17) of the Federal Personnel Representation Law on the introduction of technical equipment ‘intended’ to monitor the conduct or performance of employees.
According to this case law, it is sufficient that the equipment is objectively suitable for monitoring, without the employer’s intention to monitor being relevant. It was therefore irrelevant that the employer had not intended to monitor the performance or behaviour of its employees through social media. Rather, it was only relevant that it was possible for visitors to the pages/channels to comment on the employer’s employees in their own words via the comment function. The mere possibility of posting comments on the performance or conduct of individual employees, which were then stored, made the social media used a technical monitoring device subject to codetermination.
On the basis of the broad interpretation of the co-determination requirement under s 87(1)(6) of the Works Constitution Act practised in case law, the Federal Labour Court assumed some time ago in its sensational Facebook decision that there was a right of codetermination over the operation of a Facebook page with a ‘noticeboard’ function. Subsequently, the Hamburg Higher Labour Court considered an employer’s Twitter account to be a technical monitoring device subject to codetermination. This legal opinion is, of course, only made possible by the fact that the Federal Labour Court apparently no longer pays attention to the ‘immediacy criterion’, which was still emphasised in its Google Maps decision. According to this criterion, the monitoring of employees’ performance and behaviour had to be effected by the technical device itself and automatically, which precluded an unlimited extension of the right of codetermination.
Automatic and independent data processing by Facebook, Instagram or Twitter pages and accounts does not occur when users manually enter data via a comment function. Also, with the mere possibility of commenting on given posts, users are far more restricted than is the case with a ‘noticeboard’ function. However, the Court did not allow itself to be distracted by this and focused solely on the technical possibility of users evaluating employees. There was no consideration of employer interests in the context of a proportionality test, which is also required by the Federal Labour Court. On this point, the Administrative Court should have dealt with the employer’s objection that comments relating to employees, which had not even occurred so far, were immediately deleted by administrators.
The Administrative Court decision joins the undifferentiated case law on the right of codetermination under s87 (1) (6) of the Works Constitution Act and s75(3)(17) of the Federal Personnel Representation Law, which is interpreted too broadly. It is to be hoped that the courts entrusted with the interpretation will (possibly only with the ‘support’ of the Federal Constitutional Court) reach a more limited interpretation, oriented towards the wording of the law. Until then, employers active on social media are advised to regularly check comments for employee-related content so as not to give works councils cause for intervention. With the help of works agreements, employers’ interests can also be adequately taken into account.