In its judgment of May 04.05.2023, 5 (Az: 16.21 P XNUMX), the Federal Administrative Court decided that social media with a comment function can be a monitoring facility subject to co-determination.
1. FACTS
The German Pension Insurance Federation (DRV) operates its own pages and channels on Facebook, Twitter and Instagram - sometimes together with other pension insurance providers. These pages and channels primarily serve public relations and personnel recruitment. If the German pension insurance posts contributions there, these users can comment and also assess the behavior of individual employees within the framework of written contributions. The contributions and comments are stored by the operators of the respective platform, but are not evaluated separately for the German pension insurance.
The administrative court affirmed the existence of a right of co-determination for the staff council. The Higher Administrative Court, however, denied the existence of such a right.
With the present decision, the Federal Administrative Court ruled that the question of the existence of a right of co-determination in such constellations can only be assessed on a case-by-case basis. The matter was therefore referred back to the Higher Administrative Court.
2. DECISION
The Federal Administrative Court bases its reasoning in particular on the following considerations. According to the relevant regulation of the Federal Personnel Representation Act (BPersVG), the staff council has a say in the establishment and use of technical devices that are intended to monitor the behavior or performance of employees (Section 80 Paragraph 1 No. 21 BPersVG). The right to co-determination also serves to protect the personality of employees at the workplace and is intended to ensure that employees do not have to fear constant surveillance by a technical device and thus come under surveillance pressure. This protective purpose requires that the ability to create comments by users of the pages and channels with possibly performance- and behavior-related information must be viewed as an independent monitoring facility. Because there is a risk that the German pension insurance will also evaluate these comments. This possibility alone creates surveillance pressure. However, it is crucial that the pages and channels are designed accordingly. There must be sufficient probability that user comments related to performance and behavior will also be posted. The framework in which the comment function is embedded is also crucial.
3. CONCLUSION
The Hamburg State Labor Court (decision of September 13.09.2018, 2, Ref: 5 TaBV 18/XNUMX) granted the works council a right of co-determination for the employer's Twitter account due to the existing reply function Section 87 Paragraph 1 No. 6 BetrVG also affirmed. These decisions make it clear: the use of pages and channels on social media can trigger co-determination rights in individual cases. Employers who (want to) operate such sites should be aware of this when introducing them.
