Germany: Headset System Monitoring Subject to Co-Determination

In Germany, the introduction and use of a headset system that enables supervisors to listen in on communications between employees is subject to co-determination by the works council. This applies even if the conversations are neither recorded nor saved. If the system is introduced in a company with several locations and can only be managed and maintained by a central IT department for all or several locations, the central works council is responsible.

Facts of the Case

A company introduced headsets for internal communication in several of its branches. These headsets were operated using software and connected via a base station. The system was maintained and managed centrally by an IT department. The employees randomly selected the headsets they used from a pool of devices on a daily basis without recording which employee used which device. The use of the headsets could therefore not be assigned to individual employees.

The local works council at one branch argued that the headsets were technical equipment suitable for monitoring and therefore subject to co-determination. They claimed that since the headsets were used within the company as a closed system, the local works council, not the general works council, was responsible for co-determination. They requested a prohibition on the use of headsets in the company.

The Decision

The Federal Labor Court of Germany, the Bundesarbeitsgericht (BAG), came to the conclusion that the local works council was not responsible. In its reasoning, it stated that this was a matter that necessarily concerned several companies and therefore, in accordance with Section 50(1) of the German Works Constitution Act (BetrVG), the original competence of the general works council was established. The headset system had been introduced companywide and was managed centrally by an IT department. Since the headset and the headset system are inseparably linked, a separate consideration for the hardware and software is also prohibited.

In the opinion of the BAG, however, the headset system constitutes a technical device subject to co-determination within the meaning of Section 87(1) No. 6 BetrVG, which is suitable for monitoring. Although the data cannot be individualized per se, as the headsets cannot be directly assigned to individual employees, the system is objectively suitable for monitoring. Managers in the branch can theoretically listen to employees’ communications live at any time with their headsets, creating a constant surveillance pressure on employees. Identification based on voice and conversation content, possibly including the duty roster, is not excluded. This would not be possible without the head system. The fact that the data is neither recorded nor stored is irrelevant; the mere technical collection and transmission of the data is sufficient.

Consequences for Practice

The decision underscores that the BAG continues to adhere to a broad interpretation of the right of co-determination in the introduction and use of technical equipment, much to the chagrin of companies. The BAG allows it to suffice that the technical equipment must only be objectively suitable for monitoring. This objective suitability for monitoring applies to the introduction of a headset system, even if no data is recorded, the company does not intend to “listen in,” and the system could only be used as a “mere aid” for monitoring. In the opinion of the BAG, the mere possibility of live monitoring should be sufficient.

Practical Note

Due to its currently very broad interpretation, Section 87 (1) No. 6 BetrVG must be taken into account for almost every introduction of new technologies or changes to existing technologies in the company. Even minor introductions or changes to technical devices, such as a Microsoft Office update, require the co-determination of the works council in principle. It is not for nothing that the co-determination element of Section 87 (1) No. 6 BetrVG is often referred to as the works council’s “Swiss army knife.”

Employers are therefore well advised to examine and take into account the participation rights of the works council in each individual case whenever technical systems are introduced or used in the company. Without co-determination, the company can — to put it bluntly — ultimately only collect and process data and records manually.

Felix Hörl is an attorney with Eversheds Sutherland in Munich, Germany. © 2025 Eversheds Sutherland. All rights reserved. Reposted with permission of Lexology.