Labour law: Employer's surveillance of an employee may entitle the employee to compensation for pain and suffering.

1. Facts and Background

The plaintiff, a secretary to the management, had been employed by the defendant since May 2011 and was on sick leave from 27 December 2011. She initially submitted six certificates of incapacity for work issued by two different doctors. Due to a slipped disc, she received orthopaedic treatment from 31 January 2012. The managing director of the defendant questioned the incapacity for work and had the plaintiff monitored by a detective. The surveillance took place on four days in February 2012 and included video recordings and photos. The plaintiff felt psychologically impaired by this surveillance and demanded compensation for pain and suffering in the amount of 10,500 euros.

State Labor Court’s decision

The regional labour court ruled in favour of the plaintiff and awarded her compensation of 1,000 euros. The court came to the conclusion that the surveillance and in particular the secret video recordings were unlawful. The defendant had no legitimate reason to monitor the plaintiff, as the evidential value of the certificates of incapacity for work submitted by the various doctors and the changing diagnosis could not be called into question. Although the court recognised the plaintiff's psychological impairments, it did not consider compensation for pain and suffering in the amount she was claiming to be justified.

Appeal to the Federal Labour Court

Both parties lodged an appeal. The defendant was of the opinion that the surveillance was justified, while the plaintiff felt that the compensation for pain and suffering was too low. However, the Federal Labour Court rejected both appeals. The Eighth Senate clarified that the surveillance had violated the plaintiff's personal rights, as there was no justified suspicion of deception on the part of the employer. The plaintiff's slipped disc had been confirmed by a doctor and the fact that several doctors had issued different sick notes was not a sufficient reason to secretly monitor the plaintiff.

Adequacy of the compensation for pain and suffering

The Federal Labour Court also confirmed the amount of compensation for pain and suffering of 1,000 euros. It found that the compensation for pain and suffering determined by the Regional Labour Court was appropriate and could not be challenged on appeal. Although the plaintiff had demanded 10,500 euros, her psychological stress caused by the surveillance was not considered so serious as to justify a higher compensation for pain and suffering.

Conclusion

The employer's secret surveillance of the plaintiff was unlawful. The allegations against the plaintiff were not sufficient to justify surveillance. The compensation for pain and suffering in the amount of 1,000 euros was deemed appropriate. The appeals of both parties were unsuccessful.