In the case ruled on by the Federal Labour Court on 23 October 2018, the employer and the works council disagreed on whether the works council has a right of co-determination when the employer uses Microsoft Excel to record the attendance times of his employees, which had previously been recorded manually. According to the German Works Constitution Act (Betriebsverfassungsgesetz- BetrVG), the works council must agree to the use of technical devices designed to monitor the behavior or performance of the employees.
The Federal Labour Court ruled in favor of the works council and found that the employer is not permitted to use the Excel sheets in the intended way without agreement of the works council or the replacing decision of a reconciliation board. Pursuant to the court, the right of co-determination of the works council is aimed at protecting employees from impairments of their personal rights through the use of technical devices which is not justified by the employer’s legitimate interests. In this context, the use and application of software-based personnel management systems are subject to the co-determination of the works council. This also applies if the systems are based on “everyday standard software”, such as Microsoft Excel and if such software is only used to record the employee’s attendance time.