Arbeitszeitbetrug rechtfertigt fristlose Kündigung
Bakery visits during working hours
The Regional Labour Court (Landesarbeitsgericht, LAG) of Cologne confirmed the decision of the Labour Court in its judgment dated 11 February 2025 (Case No.: 7 Sa 635/23). As a result, the employment relationship of the plaintiff* employee was effectively terminated by immediate dismissal due to working time fraud.
The plaintiff had spent time during his working hours in bakeries, at the hairdresser’s, or at his girlfriend’s place, without recording these periods as breaks. In this specific case, the employer hired a private investigator to verify the suspicion of working time fraud. The employee must reimburse the employer for the incurred investigation costs amounting to approximately €21,600.00.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
LAG Köln (Regional Labour Court), verdict of 11th February 2025 - 7 Sa 635/23
Facts of the case
The parties are essentially in dispute over the validity of an extraordinary dismissal for cause and, alternatively, on grounds of suspicion, as well as over the reimbursement of private investigator costs.
The plaintiff had been employed since 2009 as a ticket inspector by a public transport company and was also an alternate member of the works council. Based on indications of working time fraud, the employer had the plaintiff monitored by a private investigation agency during his working hours. It was revealed that the plaintiff regularly engaged in private activities during working hours (such as visiting bakeries or his girlfriend), without recording these periods as breaks in the time tracking system.
As a result, the defendant issued an extraordinary termination without notice and additionally demanded reimbursement of the investigator costs (approximately €21,600). The plaintiff filed a wrongful dismissal claim and particularly contested the legality of the surveillance.
The wrongful dismissal claim was unsuccessful before both the Labour Court and the Regional Labour Court. The defendant’s counterclaim seeking reimbursement of the investigator costs, on the other hand, was upheld. An appeal on points of law (revision) was not admitted.
Reasons for the decision
The extraordinary dismissal was confirmed as valid by the Regional Labour Court (Landesarbeitsgericht). Intentional working time fraud—particularly through the deliberate misreporting of working hours—constitutes a serious breach of trust and thereby a compelling reason within the meaning of § 626 Para. 1 of the German Civil Code (BGB).
The court found that the plaintiff had failed to record break times on several occasions, despite engaging in personal activities during those periods. On one specific day, the plaintiff spent approximately 40 minutes engaging in private activities at his girlfriend’s residence without recording this time as a break. It was deemed implausible that he was performing ticket inspections there. Moreover, the plaintiff failed to provide any substantiated claim that he had carried out other work-related tasks while at the apartment.
The Regional Labour Court concurred with the Labour Court’s assessment that the surveillance of the plaintiff by the private investigation agency, commissioned by the employer, was permissible under § 26 (1) S. 2 of the German Federal Data Protection Act (BDSG). While monitoring an employee does represent an intrusion into personal rights and the right to informational self-determination, in this case, the intrusion was considered minor in intensity. The surveillance was limited to the plaintiff’s working hours, conducted in public areas over a few days, and primarily documented behavior that could have been observed by any bystander. Therefore, there was no prohibition on the use of the evidence obtained.
Furthermore, the court granted the defendant a claim for reimbursement of the investigator costs in the amount of approximately €21,600, pursuant to §§ 280 (1) and 249 BGB, as the expenses were deemed necessary and proportionate for uncovering a serious breach of duty.
Conclusion & practical tip
Before commissioning a private investigation agency to monitor employees, employers should ensure that there is a concrete and documented suspicion of a serious breach of duty. The surveillance must be proportionate and limited to the minimum necessary to clarify the situation. Monitoring in public spaces during working hours may be legally permissible under data protection law if it is objectively necessary and there are no less intrusive means available. Prior legal consultation is strongly recommended in order to avoid potential prohibitions on the use of evidence or claims for damages.
In cases of serious breaches of duty—such as deception regarding working hours—employees may face not only employment-related consequences, but also potential obligations to reimburse the costs of necessary investigative measures.
Further blog posts on the topic of dismissal: Invalid Termination
Author of this article: Janina Aue, Lawyer & Mediator
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