Software-based key loggers use the target computer’s operating system to track the strokes on a keyboard without the knowledge of the user. It is also possible to enable the key logger to capture computer screen shots.
In the case before the Federal Labour Court, the employer used such a key logger to conduct surveillance of their employees’ internet traffic and general conduct on office computers. The data collected uncovered that one employee used the office computer extensively for private matters. Based on this, the employer chose to dismiss the employee, who then claimed unfair dismissal.
The Federal Labour Court ruled that the continuous, detailed surveillance violated the employee’s constitutional right to informational self-determination and, as it was not implemented based on sound footing, the Federal Data Protection Act. It also ruled that the information collected through the surveillance was inadmissible in the court proceeding regarding the validity of the termination.
Although the surveillance uncovered instances of the employee’s neglect of his duties, and collected data to prove this, it was implemented “out of the blue” without any prior information justifying suspicion of misconduct, rendering the dismissal of the employee void.
In order for employers to conduct employee surveillance through the use of software-based key loggers, there must be concrete information justifying suspicion of criminal conduct or other significant neglect of duties. However, even when such information is present, it might be difficult to justify the software-based key loggers’ highly invasive nature. The Federal Labour Court indicated that the employer would, in any case, have had to turn to less invasive measures, e.g. a manual computer search in the presence of the employee.