Agile working and Working 4.0 - current implications for labour and data protection law

1. basics

Classic agile working has its origins in software development (see agile manifesto from 2001) and was primarily developed with the aim of meeting the requirements of the fast-paced and digitalised world as best as possible. By far the most frequently used method is Scrum. This method is based on the experience that many projects are too complex to be put into a fully comprehensive plan from the beginning. The goal of Scrum is the cost-effective and rapid development of target group-oriented products based on a vision or idea. In a Scrum there are only a few specifications. However, three roles (Scrum Master, Product Owner and Development Team) as well as certain process sections (Sprint Planning, Daily, Review and the Retrospective) are fixed. From an employment and data protection perspective, the following points are particularly relevant. 

2. in particular the right to direct (§ 106 GewO

With regard to the employer's right to issue instructions in the context of Scrum, a fundamental distinction must be made between two dimensions. 

The first is about the question of whether the employer can assign an agile role to the employee within the framework of his right of direction. According to the prevailing view, this is usually the case. This is because the employer basically has a subjective right to shape the working methods and approaches. As long as such an instruction is within the bounds of equitable discretion and the employment contract with a precise job description does not contradict it, it will usually be lawful. 

The second dimension is the question of the right of direction within Scrum. The working method is also characterised in particular by the fact that, for example, the development team organises itself and the Scrum master also basically does not give any instructions. Even if the law (§ 106 GewO, § 611a para. 1 p. 2 BGB) assumes in its basic concept that the employer gives instructions to the employee, there is no such obligation on the part of the employer to always do so. The employer can therefore also make use of his entrepreneurial decision without any problem and not issue any instructions at all. This applies in any case without restriction to the right to issue professional instructions. With regard to disciplinary instructions, on the other hand, a complete waiver is not possible. For compliance reasons, the employer may be obliged in individual cases to implement personnel measures (warning, dismissal) in order to prevent damage to the company. However, it is not problematic for the development team and the Scrum master to autonomously agree on holiday times, for example. 

3. risks associated with the use of external staff

The use of external employees in the context of a Scrum can be based on different legal agreements. For example, contracts for work and services, service contracts or employee leasing are conceivable. What all constructs have in common is that there are almost always legal risks with regard to hidden employee leasing or pseudo self-employment (in the case of solo self-employed). In addition, the consequences of improper implementation can be serious: Not only in terms of labour law, but also in terms of tax and social security law as well as criminal and administrative offences, a faulty implementation can have serious consequences for the employer. 

Both the Federal Social Court and the Federal Labour Court assess the existence of dependent employment by means of an overall assessment of all circumstances of the individual case. The underlying contractual agreement only has an indicative effect. In the overall assessment it is particularly important to what extent the external employee is integrated into the company and from whom he receives his instructions. These two most important indications can be influenced.

What can the employer do to minimise the risks? 

Risks can be reduced through correct contractual design and implementation. First of all, a clearly separated company organisation is helpful (spatial separation of employees and externals, clear separation of work equipment, no company email addresses and telephone numbers, no inclusion of externals in holiday and substitution plans, etc.). In addition, there should be clear instructions (e.g. no instructions from employees to external persons, disciplinary measures must be reserved for the employer). Furthermore, the employer can - if the project allows for a lot of time - initiate a status determination procedure according to § 7a SGB IV at the German Pension Insurance Association. 

4. co-determination of the works council

The introduction of agile working methods can affect the works council's participation and co-determination rights. Which ones are affected depends on the specific individual case. Relevant rights can be, for example: Information and consultation rights according to § 80 para. 2, § 90, § 106 BetrVG, co-determination in personnel matters according to § 99 BetrVG, co-determination in social matters according to § 87 BetrVG, participation in personnel planning and vocational training, §§ 92, 96ff BetrVG as well as co-determination in economic matters according to §§ 111ff BetrVG. BetrVG

In detail: 

The introduction of an agile working method can trigger a right to information of the works council under section 80 (2) BetrVG. Accordingly, the works council must be informed in a timely and comprehensive manner. Furthermore, the assignment of an agile role may constitute a transfer under section 95 (3) BetrVG and therefore require the works council's consent under section 99 BetrVG. The introduction of agile working methods usually also triggers enforceable co-determination in social matters under section 87 (1) BetrVG. Particularly worth mentioning here is the technical monitoring equipment according to No. 6, because the necessary software, which usually makes agile working effectively possible in the first place, fulfils this characteristic in most cases. In addition, the location of working time (No. 2), occupational health and safety (No. 7) and company wage structure (No. 10) can become relevant.  

The conversion of the company or individual company departments to an agile work organisation may constitute a change in operations. The employer would then be obliged to negotiate a reconciliation of interests and social plan (usually a qualification social plan) with the works council. Pursuant to section 111 p. 3 no. 4 BetrVG, a fundamental change in the organisation of work is a change in operations requiring co-determination. This can be the case, for example, if hierarchy and management levels are completely eliminated through an agile organisation. 

Pursuant to section 111, sentence 3, no. 5 of the Works Council Constitution Act (BetrVG ), the introduction of fundamentally new working methods may also constitute a change in operations. The term "working method" is understood to mean the way in which the work is carried out. In principle, this includes all planned regulations which concretise the performance of work. However, both of the above changes must be "fundamental". According to established case law, this is always the case if it has a significant impact on the operational process. In this context, the extent of the change is decisive and the operational process must be substantially different as a result. In an overall view, it must therefore be examined in each individual case whether the introduction of an agile working method fulfils these requirements. If this is the case, qualification social plans are usually a good solution. 

5 Data protection challenges

In terms of data protection law, company agreements have proven to be a legal basis for the processing of personal data required in the context of agile working. As a rule, such data processing will not be covered by the general legal basis of section 26 (1) sentence 1 BDSG. According to this, personal data of employees may be processed for purposes of the employment relationship, among others, if this is necessary for the decision on the establishment of an employment relationship or, after the establishment of the employment relationship, for its implementation or termination. As a rule, however, this necessity will have to be denied if, for example, powerful software solutions are used for the best possible development of agile work - which is almost always the case in practice. Because then the data processing usually goes beyond the mere implementation of the employment relationship. 

Anyone interested in this topic may find further valuable information and recommendations for action in this seminar of the BECK Academy.

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