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-moving and digitalized 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 incorporated into a comprehensive plan right from the start. The aim of Scrum is the cost-effective and rapid development of products tailored to the target group based on a vision or idea. In a Scrum there are only a few guidelines. In any case, three roles have been established (Scrum Master, Product Owner and development team) as well as certain process sections (sprint planning, daily, review and the retrospective). From a labor and data protection perspective, the following points are particularly relevant. 

2. PARTICULAR DIRECTORATE LAW (§ 106 GEWO) 

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

The first concerns the question of whether the employer can assign the employee an agile role within the framework of his right to direct. According to the prevailing opinion, this should generally be answered in the affirmative. The employer basically has a subjective right to shape the working methods and approaches. As long as such an instruction is within the scope of reasonable discretion and the employment contract does not conflict with a precise job description, it will generally be legal. 

The second dimension concerns the question of the right of direction within the Scrum. The working method is particularly characterized by the fact that, for example, the development team organizes itself and the Scrum Master generally does not give any instructions. Even if the law (§ 106 GewO, § 611a Paragraph 1 Sentence 2 BGB) the basic concept assumes that the employer gives the employee instructions, there is no obligation on the part of the employer to always do so. The employer can therefore easily exercise his business decision and not issue any instructions at all. In any case, this applies without restriction to the right to give technical instructions. With regard to disciplinary instructions, however, a complete waiver is not possible. In individual cases, for compliance reasons, the employer may be obliged to implement personnel measures (warnings, termination) in order to prevent damage to the company. However, it is possible to arrange vacation times autonomously by the development team and the Scrum Master without any problems. 

3. RISKS WHEN USING EXTERNAL EMPLOYEES

The use of external employees as part of a Scrum can be based on different legal agreements. For example, work contracts, service contracts or temporary employment contracts are conceivable. What all constructs have in common is that there are almost always legal risks with regard to hidden temporary employment or false self-employment (for solo self-employed people). In addition, the consequences of improper implementation can be serious: incorrect implementation can have serious consequences for the employer not only in terms of labor law, but also in terms of tax and social security law as well as criminal and administrative offense law. 

Both the Federal Social Court and the Federal Labor Court assess the existence of dependent employment by means of an overall assessment of all the circumstances of the individual case. The underlying contractual agreement only has an indicative effect. In the overall assessment, what plays a particular role is the extent to which the external person is integrated into the company and from whom he receives his instructions. These two most important indicators can be influenced in a creative way.

WHAT CAN THE EMPLOYER DO TO MINIMIZE THE RISKS? 

Risks can be reduced through correct contractual design and implementation. First of all, a clearly separated company organization is helpful (spatial separation of employees and external parties, clear separation of work equipment, no company email addresses and telephone numbers, no inclusion of external parties in vacation and replacement plans, etc.). In addition, there should be clear instructions (for example, no instructions from employees to external parties; disciplinary measures must necessarily be reserved for the employer). Furthermore, the employer can - if the project allows a lot of time - carry out a status determination procedure § 7a SGB IV apply to the German Federal Pension Insurance. 

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. For example, the following may be relevant: information and advice rights § 80 paragraph 2, § 90, § 106 BetrVG, co-determination in personnel matters § 99 BetrVG, participation in social affairs § 87 BetrVG, participation in personnel planning and vocational training, §§ 92, 96ff. BetrVG and co-determination in economic matters §§ 111ff. BetrVG. 

In detail: 

The introduction of an agile working method can result in the works council's right to information Section 80 Paragraph 2 BetrVG trigger. The works council must then be informed in a timely and comprehensive manner. Furthermore, the assignment of an agile role can be a transfer Section 95 Paragraph 3 BetrVG and therefore requires the approval of the works council § 99 BetrVG require. The introduction of agile working methods usually also leads to mandatory co-determination in social matters Section 87 Paragraph 1 BetrVG out of. Particularly noteworthy here is the technical monitoring device according to No. 6. The required software, which generally enables agile working effectively, meets this feature in most cases. In addition, the position of working hours (No. 2), occupational health and safety (No. 7) and company wage structure (No. 10) can be relevant.  

The conversion of the company or individual company departments to an agile work organization can represent an operational change. The employer would then be obliged to negotiate a reconciliation of interests and a social plan (usually a qualification social plan) with the works council. According to § 111 S. 3 No. 4 BetrVG The fundamental change to the company organization is a company change subject to co-determination. This can be the case, for example, if an agile organization completely eliminates hierarchy and management levels. 

To  § 111 S. 3 No. 5 BetrVG The introduction of fundamentally new working methods can also justify a change in operations. The term work method refers to the way in which the work is carried out. This basically includes all planned regulations that specify the provision of work. However, both of the aforementioned changes must be “fundamental”. According to established case law, this is always the case when it has a significant impact on operations. The extent of the change is particularly important and the operational process must be significantly different as a result. In an overall view, it must therefore be checked on a case-by-case basis whether the introduction of an agile working method meets these requirements. If that is the case, qualification social plans are usually a good solution. 

5. PRIVACY CHALLENGES

From a data protection perspective, company agreements have proven to be a legal basis for the processing of personal data required as part of agile work. As a rule, such data processing is not covered by the general legal basis of the Section 26 Paragraph 1 Sentence 1 BDSG be covered. According to this, personal data of employees may be processed, among other things, for the purposes of the employment relationship if this is necessary for the decision to establish an employment relationship or, after the employment relationship has been established, for its implementation or termination. However, this necessity will usually have to be denied if, for example, powerful software solutions are used to best develop 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 in this seminar at the BECK Academy further valuable information and recommendations for action.