Court Rulings on Feigning Illness | Employee Surveillance

Aaden Detective Agency Leipzig points out that the court rulings listed below do not constitute legal advice, but serve solely for general information purposes (errors excepted). For legal advice, please consult an attorney—Aaden will be happy to assist you in finding a qualified legal representative.

Rulings from the Field of Corporate Investigations

If the client of a detective agency is a business owner or freelancer, the invoice issued by a detective agency is generally tax-deductible as a business expense.

Hesse Fiscal Court, Ref. 8 K 3370/88, EFG 89, p. 576

Employee Surveillance | Continued Wage Payment Fraud

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• Private detectives are permitted to monitor employees within the company; the works council does not need to be consulted. Federal Labor Court (BAG), Ref. 1 ABR 26/90
• Employers are allowed to have employees on sick leave monitored by a detective and may charge them for the costs if the illness was merely feigned to obtain continued wage payment. A prerequisite is a justified initial suspicion that the employee is pretending to be ill. Labor Court Kassel, Ref. 8 AZR 5/97
• An employee who is unfit for work and/or on sick leave and performs private work at home (in this case: wallpapering and painting) may generally be dismissed. Regional Labor Court Rhineland-Palatinate, Ref. Sa 979/99
• Building a house while on sick leave justifies dismissal. Anyone who, instead of recovering, performs construction and transport work on a new home during sick leave may be dismissed with due notice by the employer. An employee on sick leave is obliged to behave in a way that supports recovery as quickly as possible and must refrain from anything that could delay it. A violation of this obligation may justify ordinary termination by the employer, even without proof of an actual delay in the healing process. If the illness was feigned, summary dismissal is even permissible. Regional Labor Court Hamm, Ref. 15 Sa 437/91
• An employee who behaves in a manner contrary to recovery during medically certified incapacity for work commits an intentional breach of contractual duty and may be liable for damages to the employer. The obligation to pay damages extends to all expenses incurred by the employer that are deemed necessary under the circumstances. This may also include the costs of hiring a detective agency, provided there were concrete indications justifying such action. The employer cannot be required to carry out the surveillance using their own employees; they may rely on professionals experienced in investigative and surveillance activities. Regional Labor Court Rhineland-Palatinate, Ref. 5 Sa 540/99
• Despite a prior settlement in an unfair dismissal case, the employer remains legally entitled to claim detective costs in a subsequent damages proceeding. Labor Court Hagen, Ref. 3 Ca 618/90
• In cases of particularly serious violations that damage the employer’s trust in the employee, courts accept immediate dismissal without prior warning. Judicial interpretations of “particularly serious violations” range from the theft of a piece of cake (BAG, Ref. 2 AZR 3/83) to working for another employer while on sick leave (Regional Labor Court Munich, Ref. 6 Sa 96/82).
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Notes: The above emphases (bold text) and hyperlinks are modifications made by the website operator and do not originate from the original court texts.