LAG Düsseldorf - 12 Sa 18/23
From GDPRhub
| LAG Düsseldorf - 12 Sa 18/23 | |
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| Court: | LAG Düsseldorf (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 82 GDPR |
| Decided: | 26.04.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 12 Sa 18/23 |
| European Case Law Identifier: | ECLI:DE:LAGD:2023:0426.12SA18.23.00 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Justiz NRW (in German) |
| Initial Contributor: | mg |
A German court held that the surveillance of an employee by means of a private detective gives rise to non-material damages under Article 82 GDPR, even if no further negative consequence was claimed by the data subject.
English Summary
Facts
The controller, an employer, hired a private detective to monitor the data subject, an employee, during a sick leave. Surveillance measures were due to the fact the controller had reasons to doubt that the data subject was actually sick. As a matter of fact, eventually the controller used the information collected in this way to fire the data subject.
The latter appealed the decision before a labour court, claiming that the decision was unlawful. They also claimed non-material damages in violation of their personality right due to the surveillance.
The court of first instance upheld the data subject’s claims and considered that damages had to be compensated pursuant to Article 82 GDPR.
The controller appealed the first instance decision.
Holding
The court rejected the controller’s appeal and confirmed that the data subject should be compensated for the damage suffered.
At the outset, the court confirmed the unlawfulness of the surveillance measure. According to the court, regardless of whether the controlled tried to base the processing on contract (Article 6(1)(b) GDPR) or legitimate interest (Article 6(1)(f) GDPR), the requirement of necessity was not met in the present case. By choosing to monitor the data subject by means of a private detective, the controller did not adopt the less intrusive measure and also violated the principle of data minimisation.
Concerning Article 82 GDPR, the court referred to the CJEU judgement in case C-300/21, where the latter clarified that non-material damages under the GDPR cannot be granted in case of a mere violation of the Regulation. As a matter of fact, a negative consequence stemming from the violation must be proved. At the same time, it is not necessary that such a consequence reaches a certain threshold of seriousness to be compensated.
The court found that the surveillance of the data subject by means of a private detective necessarily entailed a negative consequence. As a consequence of the surveillance, the data subject themselves became "the object of the processing" with complete loss of control over their personal data.
In light of the above and taking into account the seriousness of the violation, the court granted €1,500 of compensation. The court referred to the AG Opinion in case C-667/21 and stressed that the level of negligence or guilt is not an element to take into account in the determination of the amount of non-material damages to be accorded under EU law.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
1T A T B E S T A N D: 2The parties dispute the effectiveness of an extraordinary termination without notice as well as the plaintiff's claim for compensation due to surveillance by a detective agency. 3The defendant offered consulting and services in the area of digital printing and digital document management. It employed a total of around 280 people at 40 locations. 4The unmarried plaintiff, born on October 1st, 1957, living at K. 2, 14109 Q., had been employed by the defendant or its legal predecessors in various sales positions since September 1st, 2009. The plaintiff lived in a house on a hillside property at the address mentioned in Q., which could be reached via a staircase with 20 steps. The plaintiff had private health insurance. The basis for the plaintiff's activity was initially the employment contract dated August 10, 2009 / August 13, 2009, which was concluded with a legal predecessor. This said, among other things: 5"With effect from September 1, 2009, you will be employed at the functional level of J. GmbH for the entire federal territory. Your place of work is the Competence Center West in S.. Your regular place of work is the home office. 6 7Home office regulation 8In connection with your sales activities, which are primarily related to field sales, you can use your home office as your first regular place of work from the start of the contract. 9With a notice period of six weeks, this regulation can be changed by either side if there is an objective reason. In the event of a change, there will be no balancing of advantages and disadvantages. The regular place of work and office would then be the Competence Center East. Any changes or additions to this home office regulation must be made in writing. 10" 11With an amendment agreement dated June 25, 2010, the plaintiff was promoted to sales manager for Germany. With a further amendment contract dated November 14, 2013, the promotion to Director Strategic Accounts for P. Z. and Z. followed from January 1, 2014. The contract amendment dated November 14, 2013/January 10, 2014 stated, among other things: 12". 13Your place of work is the headquarters in F. Your regular place of work is your home office. 14 15All other components of your employment contract remain unchanged and remain valid. 16" 17In a letter dated June 27, 2017, a legal predecessor of the defendant terminated the existing employment relationship with the plaintiff as of September 30, 2017. With the notice of termination dated June 29, 2017, the plaintiff was released from the obligation to perform work with continued payment of remuneration. The dismissal protection suit brought by the plaintiff against the dismissal was ultimately successful before the Berlin Labor Court and the Berlin-Brandenburg State Labor Court (judgment of February 12, 2019 - 19 Sa 1610/19). The plaintiff subsequently remained released and continued to pay his remuneration. With effect from February 27, 2019, the defendant's legal predecessor left the Q. Group, changed the name of the company and has been operating under Y. GmbH as the defendant since May 1, 2019. 18 In a letter dated March 13, 2020, the defendant offered the plaintiff the position as account manager for the southern region and invited him to an interview on March 20, 2020 at the defendant's premises at the production site in Q. The plaintiff canceled this interview on March 18, 2020, submitting a certificate of incapacity for work. In a letter dated October 27, 2020, the defendant terminated the plaintiff's employment relationship for operational reasons with effect from February 28, 2021. The plaintiff's paid exemption remained. In a legally binding partial judgment dated June 30, 2021, the Berlin Labor Court determined that the termination notice given by the defendant did not terminate the parties' employment relationship. It considered the termination notice to be ineffective because of the priority of a change notice. The defendant gave the plaintiff a notice of change effective November 30, 2021 in a letter dated July 29, 2021. This said, among other things: 19" 20We offer you to continue your employment in the position of Account Manager for the South Region from December 1st, 2021. The tasks and activities assigned to you in this position can be found in the attached job description. As an account manager, you are assigned to the sales department. The place of work is the Competence Center South in Q. 21 22The other conditions of your employment relationship, in particular working hours and your vacation entitlement, remain unchanged. Only the conditions listed above change. 23 24If you accept our offer, we will also support you financially with the necessary move. We provide support services for the change of residence and relocation in accordance with the regulations of the social plan attached as an appendix (here Sections 4.2. ff.). We grant these benefits regardless of the fact that the social plan has expired in the meantime. 25" 26In the job description for a key account manager in Region J., which was attached to the notice of change, his tasks stated: 27" - Acquisition of new customers in the areas 28# Transactional Printing 29# Digitalization 30# Document Management 31# Location-based printing services 32- Carrying out face-to-face appointments with customers 33- Customer needs analysis 34- Supervision of tenders still VOL 35- Supervision of open tenders 36- Creation of service concepts together with the respective customer on site and the respective operational unit to meet customer needs 37- strategic development/expansion of a sales pipeline in the southern region 38- Calculation of service prices and compliance with margin criteria/requirements in coordination with sales management/management" 39In a letter dated August 5, 2021, the plaintiff accepted the offer of change associated with the change in termination, subject to social justification, and filed a claim for protection against change in dismissal before the Berlin Labor Court. Until November 30, 2021, the plaintiff was released and the remuneration continued to be paid. In a letter dated November 23, 2021, the defendant asked the plaintiff to start working as an account manager at the Competence Center South in Q. from December 1, 2021. Initially the work did not take place. In an email dated November 30, 2021 at 12:28 p.m., the plaintiff canceled the appointment for health reasons. He had previously booked a hotel room in R. on November 30th, 2021 at 12:28 p.m. for the period from November 30th, 2021 to December 1st, 2021. The booked hotel was canceled at 3:58 p.m. The Q. Labor Court legally dismissed the plaintiff's change protection claim in a judgment dated December 7, 2021. The plaintiff actually started work on January 10, 2022. The defendant did not subsequently demand that the plaintiff return the equipment provided to the plaintiff by the defendant for the home office. The home office allowance continued to be paid. The plaintiff's gross monthly salary (basic salary plus variable remuneration) averaged 12,839.83 euros. 40Differences subsequently arose between the parties as to whether the tasks actually assigned to the plaintiff were in accordance with the contract, with, among other things, the question of whether the plaintiff should sell offset printing products being the subject of the dispute. Reference is made to the relevant emails from the defendant's managing director from January 19, 2022 and February 3, 2022 for further details and the work tasks owed from the defendant's perspective. 41As part of a virtual meeting of the sales department on February 3, 2022, the plaintiff had a dispute with the defendant's management regarding the question of what activities the plaintiff had carried out in the previous weeks. This question was then postponed to a bilateral discussion. 42In a written statement dated February 4, 2022, the plaintiff filed a lawsuit before the Mannheim Labor Court (ref. 4 Ca 31/22) and claimed employment from the defendant in accordance with the contract. In the statement of claim, the plaintiff alleged a transfer to a fictitious position in violation of the contract and employment with inferior tasks and responsibilities that did not correspond to the change offer from the change notice. 43In an email dated Friday, February 4, 2022 at 2:30 p.m., the plaintiff informed the defendant's managing director, Mr. E., of the following: 44"Dear Mr. E., 45Unfortunately I injured myself outside of working hours today. I therefore consulted a doctor who prescribed treatment that would result in incapacity for work (starting today) until February 18, 2022. 46I sent the relevant certificate by post. 47With kind regards 48G." 49The corresponding certificate of incapacity for work dated February 4th, 2022, issued by a specialist in physical and rehabilitative medicine at a medical care center in Q. for the period from February 4th, 2022 to February 18th, 2022, was received by the defendant on February 7th, 2022. By email dated February 18, 2022, the plaintiff sent a follow-up certificate dated February 17, 2022, which continued to certify incapacity for work until March 4, 2022. This was issued by the aforementioned medical care center in Q. on its stationery. 50The defendant then had the plaintiff monitored on a random basis by the detective agency Q. between February 25th, 2022 and March 4th, 2022. In the course of this monitoring, the practice group L. in Q. was also visited and the home of the plaintiff's former partner was taken into account. The plaintiff's former partner was not mentioned in the detective agency's report, as of March 18, 2022. According to the information in the report, the plaintiff was observed, among other things, as follows: 5125.02.2022: 52Observation of the plaintiff's house and the parked car with photographs. Observation at the address of the practice group L. with a photo. 5328.02.2022: 54Observation at the plaintiff's home address in Q. with a photograph of the house. During one of the frequent "inspections", the plaintiff was seen carrying a bulky object (measuring approximately 1 m long and 30 cm in diameter) and another object in the form of a roll (measuring 1 m long and 10 cm in diameter). the trunk of the Mercedes-Benz 300 SE was spent without taking any photos. 5501.03.2022: 56Visit to a bathroom studio with the information that the plaintiff dragged his left leg while walking in the parking lot, with a photograph. Visit to an Edeka market, where the plaintiff carried a box filled with food to his car with a photograph. 5704.03.2022: 58Arrival in the parking lot of a drinks market with photography. Return without package and visible purchases without photograph. Removing the car battery from his car with a photograph, which the plaintiff then carried up the stairs. Operation with a hand-held circular saw on his terrace with illumination. 59For further details of the surveillance, reference is made to the detective agency's report, status of the investigation: March 18, 2022 (Appendix B 18 to the defendant's written statement dated July 29, 2022). 60In a letter dated March 21, 2022, the defendant invited the plaintiff to a personal interview on March 23, 2022 to hear him about the accusation of faking his inability to work between February 4, 2022 and March 4, 2022. The plaintiff stated that he was in Q. until the end of the working day on February 3rd, 2022 and in Q. on February 4th, 2022. He sustained the injury in Q. before 8:00 a.m. On February 25, 2022, he took cardboard objects to hand over to the city cleaning service on the way to physiotherapy. The observations on March 4, 2022 were minor things that did not hinder the recovery process. He should have moved. Standing activities were not restricted. Due to the content of the conversation on March 23, 2022, reference is made to the minutes of this conversation (Appendix B 20 to the defendant's written statement of July 29, 2022). 61 On March 28, 2022, the defendant heard the works council on the plaintiff's intended extraordinary dismissal. The letter dated March 28, 2022 said, among other things: 62" 63b.) Breach of duty 64By feigning his inability to work, Mr. R. violated his employment contractual obligations in a particularly serious manner. 65Despite taking into account Mr. R.'s statements in the personnel interview on March 23, 2022, we assume that Mr. R. was fit to work. According to the detective agency's report, the alleged injury did not affect his ability to carry out everyday activities. He was able to drive a vehicle, do shopping, lift and carry bulky and heavy objects and perform manual work. His work as an account manager for the southern region is largely an office job (making telephone calls and working on the computer) and does not involve any physical exertion. Since Mr. R. was even able to drive a vehicle, the alleged injury would not have prevented him from holding customer appointments. 66All of this gives rise to the suspicion of faking inability to work. 67 68c.) Balancing of interests 69We have carried out a balancing of interests. 70Mr R. is single and has no children to support. Based on these social data, there is no special need for protection of the employee, which should be assessed as greater than the employer's need to terminate the employment relationship extraordinarily or, alternatively, properly. 71What is in dispute for Mr. R. is his 12 years of employment with the company. However, the length of service is contradicted, on the one hand, by the particular seriousness of the breach of duty and, on the other hand, by the fact that Mr. R. has so far shown himself to be completely unwilling to actually carry out the work assigned to him by way of termination notice. Despite express instructions to the contrary, he refuses to manage the CRM and document his sales activities there. He also refuses to acquire orders in the area of responsibility assigned to him. Of the 17 weeks that he was actively working for S. again, he missed 4 weeks due to the alleged inability to work at issue here and a further six weeks due to vacation and a previous inability to work due to illness. In the remaining 7 weeks of active work, Mr. R. has not yet been able to point to any relevant sales activities in the area of responsibility assigned to him. 72The overall behavior of Mr. R. documents Mr. R.'s lack of willingness to perform his work properly and in accordance with instructions. 73The seriousness of the breach of duty justifies the employer's interest in terminating the employment relationship. 74" 75 The fact that the plaintiff did not agree with the tasks assigned to him, considered them not to be in accordance with the contract and had filed a lawsuit for employment in accordance with the contract was not mentioned at the hearing. The works council approved the intended termination on March 31, 2022. 76In a letter dated April 1, 2022, received by the plaintiff on April 5, 2022, the defendant terminated the existing employment relationship between the parties without notice. The effectiveness of this termination is the subject of the proceedings here. 77At the same time, in a letter dated April 1, 2022, sent to the plaintiff on April 5, 2022, the defendant issued an ordinary termination with effect from November 30, 2022. The plaintiff filed the application for protection against dismissal against this ordinary dismissal as an extension of the lawsuit before the Mannheim Labor Court in the proceedings under Ref. 4 Ca 31/22. 78With the application for protection against dismissal dated April 22, 2022, received at the Krefeld Labor Court on the same day and delivered to the defendant on April 27, 2022, the plaintiff objected to the effectiveness of the immediate termination of April 1, 2022. With the extension of the lawsuit dated August 31, 2022, received at the Krefeld Labor Court on the same date and delivered to the defendant on September 1, 2022, the plaintiff claimed payment of compensation for pain and suffering in the amount of at least 25,000.00 euros. 79The plaintiff was of the opinion that there was no important reason for the termination without notice. 80The plaintiff claimed that the inability to work from February 4th, 2022 was due to an injury that he sustained when he carried his luggage from the car to his apartment on the morning of February 4th, 2022 after arriving in Q. and on the tripped down the stairs. This injury caused him to be unable to work both in terms of office work and travel activities assigned to him. Until the end of his inability to work, he was unable to sit for long periods of time or travel long distances by car. Standing activities were not restricted. According to the doctor's instructions, he should move. To this end, the plaintiff referred to the testimony of the doctors treating him and stated that, as a precautionary measure, he would carry declarations of release from confidentiality with him at the chamber appointment. 81The detective agency's observations gave rise to no doubt as to the existence of the incapacity for work in the period from February 4th, 2022 to March 4th, 2022. On February 25th, 2022 - the detective report incorrectly states February 28th, 2022 - he carried cardboard into his car that was intended for disposal. He took these with him on the way to physiotherapy. The observation on March 1, 2022 also raises no doubt about his inability to work. Finally, the detective also saw that he was dragging one leg while walking. Nothing different applies to the purchase of groceries, especially since the box carried had no significant weight. His posture in the second photo from 12:52 p.m. shows the difficulties he had getting into his vehicle. On March 4th, 2022 he removed the battery from his classic car and carried it. The filled battery weighs 11.6 kg and is equipped with carrying handles. It can be easily carried with one hand. The photos taken on his terrace showed him making a picture frame with a total weight of less than 1 kg. The saw weighs approx. 3.5 kg. 82The probative value of the certificates of incapacity for work he submitted was not shaken. The fact that the second certificate dated February 17, 2022 was issued on the doctor's office's letterhead does not give rise to such doubts. There are no mandatory certificates of incapacity for work for private patients. 83The fact that the certificates were issued in Q. does not affect their probative value. In this regard, the plaintiff claimed that the defendant's field staff - like him - were allowed to freely distribute the weekly working hours they were contractually owed within the working week. There is no obligation to work at a specific location five days a week from Monday to Friday. He was free to freely divide his weekly working hours based on his needs. The weekly working hours could, for example, be spread over the period from Monday to Thursday. There was no obligation to work in Q. on Friday, February 4th, 2022. All of this was the case from the beginning of the employment relationship and was not changed by the change of notice, as this did not contain an express declaration about the home office regulation. The mere fact that the "place of work" and no longer the "office" is defined before does not indicate that the defendant wanted to end the home office regulation. In addition, the home office regulation was also secured collectively via the company agreement on the requirements and the establishment of a home office. Due to the overall circumstances, he correctly assumed on February 4th, 2022 that his home office job in Q. would continue to exist. The plaintiff further claimed that in the course of his last job he was also allowed to carry out some of his work from his home office. A physical presence in the Q. from Monday to Friday was not necessary. 84The working time journal he submitted from March 8, 2022 only states the weekly working hours. It does not contain any information about the distribution of working hours across the individual days of the week. The working time journal from March 8, 2022 does not justify the defendant's alleged suspicions and in particular does not justify the order to the detective agency from February 25, 2022. 85Finally, the defendant did not comply with the two-week deadline in accordance with Section 626 Paragraph 2 of the German Civil Code (BGB). The defendant's managing director E. or another decision-maker received a different version of the final report immediately after the end of the investigation on March 4, 2022 at 8 p.m. It can be assumed that the report was already completed on March 4, 2022 and was sent to Mr. E. immediately, but had to be reworked in order to enable the report to be usable in the expected unfair dismissal lawsuit. The claimed costs of 15,000.00 euros would not correspond to 50.5 working hours, but rather 102 or 122.5 detective hours, depending on whether the gross or net hourly rate is used. Regardless of this, the defendant must allow the detective agency to take credit for the processing time. 86In addition, the works council was not heard properly. The plaintiff has alleged that the hearing was not truthful and was deliberately incomplete. The defendant falsely claimed that he should have been in Q. on February 4, 2022. No copy of the hearing form was given to the works council. The defendant did not inform the works council what questions it asked during the suspicion hearing on March 23, 2022 and what answers it gave. The defendant concealed his statement about his whereabouts on the morning of February 4, 2022. 87The plaintiff believed that the defendant intentionally and unlawfully violated his general personal rights when she arranged for surveillance in his private area, the surveillance of people close to him and the surveillance of his family doctors in the period from February 25, 2022 to March 4, 2022. The surveillance mandate is incompatible with the requirements of Section 26 Paragraph 1 Sentences 1 and 2 BDSG. 88First of all, the order given to the detective agency was too broad in terms of the subject matter of the order. So it is not true that he was often unable to work. The connection with the fact that he allegedly wanted to avoid appointments is false. The monitoring of the M. practice group was unsuitable because their certificates of incapacity for work only covered past periods, but not from February 4th, 2022 to March 4th, 2022. He himself did not visit the practice on February 25, 2022 or any other time in February 2022 or March 2022. His admission from March 2020 about his stay with his partner does not justify the observation of her apartment in February 2022 and March 2022. 89The commissioning of the detective agency was harassment because the defendant wanted to get rid of him. It is therefore completely irrational that the defendant assigned him the position of Account Manager South by means of a change of notice, but then gave this position to Mr. Q. before he started work and assigned him substandard and unrelated tasks from the area of responsibility of the Account Manager South. This open harassment is the reason for the lawsuit he filed with the Mannheim Labor Court for contractual employment. The suspicion of feigned inability to work, invented by the defendant's managing director E., was also open harassment. It is incomprehensible how the defendant could infer from a picture taken in 2008 that he was active in the classic car trade. The defendant invaded his privacy without any reason. The alleged suspicion of a fake inability to work was never justified. 90Finally, the investigation report raises the strong suspicion that the detective agency used illegal investigative methods. This follows from the fact that the detective agency speaks in the investigation report of a Mercedes 560 SL, a US version that he converted to an EU model. The original US model 560 SL was no longer recognizable from the outside after the conversion and the detective agency could only find out about it through an owner query. 91 By commissioning the detective agency, the defendant wanted to prevent him from running in the works council election planned for May 2022. 92The plaintiff has claimed that the detective report does not reflect the entire surveillance. With costs of 15,000.00 euros and 50.5 working hours, the report submitted to the file cannot be complete. He assumes that he and those around him were also monitored on other days. The defendant should submit the entire report or daily reports and the complete cost notes for file. Daily reporting is an indispensable standard. 93By means of the invalid extraordinary termination based on the unlawful monitoring order, the defendant obviously wanted to save personnel costs for the period from April 5, 2022 to August 31, 2023 in the amount of EUR 255,000.00. 94For this reason, compensation should be paid. It should be taken into account that as a student he was followed into his apartment by a violent criminal. This trauma was reactivated when the detective surveillance was revealed. 95The plaintiff requested 961.Determine that the employment relationship existing between the parties was not terminated by the defendant's extraordinary termination on April 1, 2022; 972. order the defendant to pay him compensation for pain and suffering in the amount of at least 25,000.00 euros, at the discretion of the court, along with interest of five percentage points above the base interest rate since February 25, 2022. 98The defendant requested 99to dismiss the lawsuit. 100She said there was an important reason for the extraordinary termination. She based the termination on the suspicion that the plaintiff had faked his inability to work. She claimed that the certificates of incapacity for work dated February 4, 2022 and February 17, 2022 submitted by the plaintiff were obtained by fraud. In any case, he deceived her about the duration of her inability to work. Based on the findings of the detective agency, the plaintiff was able to carry out the activities required under his employment contract in the period from February 4th, 2022 to March 4th, 2022. Since he was obviously able to carry out various everyday activities without any restrictions, he was also able to carry out the tasks assigned to him as an account manager. 101These tasks are office tasks. These activities could be done sitting, standing or, if in doubt, even lying down. An injury to the musculoskeletal system (e.g. a strain or torn ligament) may limit physical mobility, but the activities mentioned above can still be carried out. If applicable. You should take breaks or change your posture or sitting position. The general ability to work is not excluded. Given the detective agency's observations, the plaintiff was able to use his laptop and make phone calls. The plaintiff was also able to carry out the face-to-face appointments with customers that were part of the task profile and to create service concepts together with customers on site, i.e. in the immediate vicinity of Q., since he was also able to drive a car in the Berlin city area. All of this shows that the plaintiff intentionally deceived them. 102The plaintiff's admission of his alleged injury on the morning of February 4, 2022 in Q. is contradictory. The admission is disputed. Why didn't he describe exactly how the accident happened instead of informing her that he was injured outside of working hours? If the plaintiff had actually injured himself while unloading his vehicle on the return journey from Q. to Q., the injury would have been a so-called commuting accident. In order to avoid being examined by a transit doctor, the plaintiff concealed the circumstances of his "injury" and, when reporting his inability to work, expressly stated that he had injured himself "outside of working hours". In doing so, the plaintiff circumvented a medical examination by a transit doctor that had been ordered by the defendant upon proper reporting. 103The defendant has claimed that the plaintiff's inability to work was only a pretext in March 2020 and on November 30, 2021. 104The defendant believed that she had collected the evidence lawfully. The detective investigations were permissible in accordance with Section 26 BDSG. She had a legitimate interest in data collection, data processing and data use because objective facts gave rise to the suspicion that the plaintiff had faked his inability to work between February 4th, 2022 and March 4th, 2022. 105The reason for the suspicion is the certificate of incapacity for work issued in Q. on February 4, 2022. The plaintiff had to be in Q. and not in Q. on Thursday, February 3rd, 2022 and Friday, February 4th, 2022. After the notice of change was announced, the plaintiff was no longer able to carry out work from his home office in the position of account manager for the southern region. Rather, the place of work is “Competence Center South in Q.” a physical presence there (with the exception of face-to-face appointments with/with customers). The necessity of the move is also clear enough from the notice of change and the attached job description. If there is no agreement on home office that continues after the notice of change, the company agreement on home office does not apply. The plaintiff was also not allowed to freely plan his working hours, for example not to perform any work on Fridays. At the location in Q., as well as at all other locations in P., the contractually agreed working hours for field staff are spread over 5 days a week, from Monday to Friday. Regardless of this, there is no statement by the plaintiff about what he did in the first four days of the week, so that he was allegedly allowed to "compress" his working hours on February 4, 2022. 106According to all this, the plaintiff must have driven to Q. either on Thursday evening or on Friday morning in order to have a medical examination there on Friday. However, this would contradict the “infringement” alleged by the plaintiff. If he were injured, he would not have been able to drive the car over 600 kilometers. And if he had been able to do so, the injury would not have prevented his ability to work. The suspicions are reinforced by the fact that the plaintiff had already previously taken refuge in his inability to work. 107The data collected could also be used. If data collected permissibly in accordance with Section 26 Paragraph 1 Sentence 1 or Sentence 2 BDSG gives rise to suspicion of a breach of duty, they may also be processed and used for the purposes and under the conditions of Section 26 Paragraph 1 Sentence 1 BDSG. There was no milder means of determining the plaintiff's ability or inability to work. In particular, the MDK could not be involved due to the plaintiff's private health insurance. In addition, the plaintiff was only checked on a random basis. 108Since the detective agency's final report was only available on March 18, 2022, the two-week deadline in accordance with Section 626 (2) BGB was met. She heard the plaintiff immediately after receiving the report and initiated and implemented all necessary (investigative) measures as quickly as possible. Regardless of the question of interim reports, only the final report confirmed the suspicion against the plaintiff. 109The works council was heard properly. Against her better judgment, she did not inform the works council that the plaintiff would have had to be in Q. on Thursday, February 3rd, 2022 and Friday, February 4th, 2022 in order to carry out his work there. Rather, the plaintiff himself informed her in an email dated March 8, 2022 that he was in Q. in the fourth and fifth calendar weeks, i.e. from January 24, 2022 to February 4, 2022. Based on this evidence, she could and should have assumed that the plaintiff would stay in Q. in accordance with the contract in order to carry out his work there. 110The plaintiff is not entitled to any claim for violation of his general personal rights. The data collection was not unlawful according to Section 26 Paragraph 1 BDSG. This and the use of the data were permitted because they were suitable, necessary and appropriate. The corresponding objective suspicion was present. The purpose of the observation at V. was to uncover the plaintiff's fake inability to work because the plaintiff had gone there. It was also not about the plaintiff's classic car trade. Rather, the trigger was the plaintiff's behavior in the sales meeting on February 3, 2022 and the subsequent certificates of incapacity for work. Furthermore, it should not be ignored that the observation carried out made it possible to demonstrate and prove that there was actually a breach of duty and a criminal offense. Appropriateness is ensured by the observation distance and only random checks. To the extent that the plaintiff's partner's home was inspected, this is because the plaintiff had informed her managing director by email on March 18, 2020 that he was currently not in his apartment and that the letter was sent to his partner's address will be forwarded. 111In any case, the amount of the claimed compensation of 25,000.00 euros is unreasonably high. The image recordings did not affect the plaintiff's intimate or private life, but rather related in particular to events in public (street, doctor's visits, shopping). The duration of the observation on only four days a week should be taken into account. The plaintiff's alleged psychological stress caused by the incident is disputed. The plaintiff provided no evidence of the alleged incident at that time. 112The labor court approved the application for protection against dismissal in its judgment of November 17, 2022. There is no sufficiently strong suspicion that the plaintiff feigned an actual non-existent inability to work in the period from February 4th, 2022 to March 4th, 2022. The plaintiff is also not entitled to compensation for pain and suffering. There was no discernible damage to the plaintiff that would give rise to a claim. The judgment of the labor court was served on the defendant on December 6th, 2022 and the plaintiff on December 7th, 2022. The defendant filed an appeal on January 5th, 2023 and - after extending the deadline for substantiating the appeal until March 6th, 2023 - justified it on March 3rd, 2023. The plaintiff filed an appeal on Monday, January 9th, 2023 and justified it on February 7th, 2023 - after extending the deadline for substantiating the appeal until February 20th, 2023. 113With his appeal, the plaintiff continues to pursue the payment application. There is damage to him. The labor court drew incorrect conclusions from the Advocate General's opinion in case C-300/21. He stated that the line between mere (non-compensable) annoyance and real (compensable) non-material damage is blurred and that it is complicated to differentiate the two categories abstractly. This difficult task falls to the courts of the Member States. This boundary was not drawn. General personal rights must also be observed in the employment relationship. Secret surveillance by a detective is always a serious interference with personal rights and secret surveillance in private areas with the taking of photos or video recordings is a particularly serious interference. The defendant also misunderstands the legal situation. According to Article 82 Paragraph 1 of the GDPR, he is entitled to non-material damages. Its deterrent effect must be taken into account. Within the framework of Article 82 Paragraph 1 GDPR, a serious violation of personality is not relevant. European law does not provide for the exclusion of minor damage. Immaterial damage could also consist of inadmissible surveillance by a detective agency. 114His observation was unlawful. There was no legitimate reason for this. The form of the certificate of incapacity for work dated February 17, 2022 was not unusual. It would have been easily possible for the defendant to question him about why he was in Q. on February 4, 2022. Instead, she suspected, without any clue, that he drove his own car from Q. to Q. on the morning of February 4th, 2022. From this and the theory that he traveled by car after the injury, she deduced that his inability to work was faked. The overview he submitted from March 8th, 2022 was not yet available on the day the detective agency was commissioned on February 25th, 2022. There was no evidence of any unauthorized secondary employment. 115And even if initial suspicion was assumed, the surveillance was inadmissible. Through observation from February 25th, 2022, it was not possible to determine whether he was unable to work between February 4th, 2022 and February 25th, 2022. The surveillance of the "V." was unlawful. Since this was part of his personal environment, he was also affected himself. 116The extensive surveillance violated his personal rights. In view of the total amount of the detective costs and the uncorrelated number of observation hours specified in the investigation report of March 18, 2022, there is reasonable suspicion that the observation was much more intensive and went much deeper than can be seen in the investigation report. Given the duration of the private surveillance by two detectives, this is a serious intervention. Contrary to the opinion of the labor court, the depth of the intervention was by no means small because the entrance and outside areas of the house were also observed. As a precautionary measure, it is disputed that the detective agency's observation activities were limited to the events described in the investigation report. This is not conceivable because of the detective costs claimed by the defendant. How is he supposed to feel safe at home if the defendant follows him there? The fact that he was not aware of the surveillance until his hearing was obviously irrelevant. When assessing the compensation for pain and suffering, it should be taken into account that this is only approx. 10% of the personnel cost savings sought by the defendant. 117The implementation of the co-determination procedure for the use of technical means by the detective agency is disputed. 118With regard to the defendant's appeal, the plaintiff continues to be of the opinion that the termination without notice is legally ineffective. 119This already failed due to the faulty works council hearing, which the labor court correctly pointed out in the oral hearing, but then incorrectly did not use this to justify the judgment. 120The employer did not explain to the works council at the hearing that the information about the location of the injury was merely allegations. The employer's theses in the works council hearing were based on the unsubstantiated and inaccurate assumption that he had lied about the location of the injury event during the suspicion hearing and was actually in Q. The defendant also suggested to the works council that he was able to work part-time, which was unknown under German labor law. In addition, she claimed out of the blue that his state of health did not prevent him from visiting customers throughout the entire period of his inability to work. Finally, the defendant concealed important parts of the facts in the overall assessment that was important to her in the works council hearing. This concerns the proceedings he brought before the Mannheim Labor Court, which essentially revolves around the fact that, in his view, the defendant had assigned the tasks assigned to him through change notice to someone else and instead assigned him inferior tasks. He had in no way shown any unwillingness to carry out the tasks assigned to him by way of the notice of change, but had even sought legal help for this purpose. 121 With regard to the accusation of dismissal, the labor court's assumption - which is not correct - of suspicion not being sufficient for a dismissal on suspicion, fails because the defendant failed to inform him about his stay on the evening of February 3rd, 2022 and the morning of February 4th before commissioning the detective agency .2022 to be surveyed. The milder remedy of a hearing before commissioning the detective agency also stands in the way of the use of the detective report. And his suspicion hearing on March 23, 2022 also followed a prepared, precise catalog of questions and left no room for additional statements. The incident actually happened as follows: 122He left Q. on February 3rd, 2022 at around 6:00 p.m. At the rest stop 123X. He took a short break and refueled around 10 p.m. He arrived in Q. around midnight. When he arrived in Q. he was very tired. Since, as the defendant knew, he was suffering from progressive hip arthrosis, he was unable to move well, as is often the case after long journeys. He doesn't carry heavy loads in such a state, especially not up the steep stairs to his house. That's why he left the suitcase in the trunk and only took the laptop bag with him. On the morning of February 4, 2022, shortly before 8 a.m., he took the suitcase out of the vehicle. As he walked up the stairs to the house with the heavy suitcase, the handle of the suitcase tore off. He stumbled and shifted and shifted while trying to keep the suitcase and his balance. The catching movements caused a lot of pain and probably caused a herniated disc. The detection of massive and extremely painful muscle hardening is certain. After February 4, 2022, he was unable to walk properly or drive a car for more than two weeks. The treating doctor prescribed physiotherapy appointments for him, which took place on the following days: February 9th, 2022, February 11th, 2022, February 18th, 2022, February 21st, 2022, February 22nd, 2022, February 23rd, 2022, February 25th, 2022, February 28th, 2022, 0 03/02/2022 , March 4, 2022. For the details, reference is made to the physiotherapy invoice dated March 4, 2022, which was submitted by the plaintiff as a copy. He was initially only able to attend his doctor's appointments with a physiotherapist with the help of a named girlfriend and a named friend who drove him. He was only able to drive himself from February 21, 2022 after his condition improved. The physiotherapist could also confirm all of this. He had already stated in the conciliation hearing that the cause of his inability to work was a back problem, due to which he was unable to sit and drive for long periods of time, and then in more detail in the chamber hearing. 124 Regardless of this, the defendant's statement that he can go about his everyday business is limited to the period from February 28, 2022. And even for the period from that day onwards, the defendant's view is not convincing. He was not even partially able to work. Due to the lack of relevant economic structure within a 20 to 25 km radius around Q., travel was unavoidable. 125The plaintiff requests 1261. to reject the defendant's appeal of January 5, 2023 and 1272. amending the statement in paragraph 2 of the judgment of the Krefeld Labor Court of November 17, 2022 - 4 Ca 566/22 - to sentence the defendant to award him compensation for pain and suffering in the amount of at least 25,000.00 euros, at the discretion of the court pay, along with interest of five percentage points above the base interest rate since February 25, 2022. 128The defendant requests 1291. to modify the judgment of the Krefeld Labor Court - 4 Ca 566/22 - announced on November 17, 2022 and to dismiss the lawsuit in its entirety and 1302. to reject the plaintiff's appeal against the dismissal ruling of the Krefeld Labor Court of November 17, 2022. 131She is of the opinion that the extraordinary termination she gave is legally effective. The labor court had exceeded the requirements regarding the degree of suspicion justifying the dismissal. 132If the plaintiff was able to carry out the activities observed by the detective agency, there is a high probability that he was also able to carry out the light office work required. 133The plaintiff does not explain why he could not have carried out sedentary work or long car journeys. Although he claims an injury, he does not describe the circumstances, let alone the nature of his injury and its impact on his ability to work. Without this information, it is not possible to assess whether the plaintiff was able to perform sedentary tasks or drive a car. It is also incorrect that the plaintiff's activities could only have been carried out while sitting because the plaintiff was not tied to a stationary workstation or a landline telephone. The plaintiff could have easily moved while talking on the phone. The labor court's assumption that it was possible that the plaintiff was unable to work while sitting and drive a car were unfounded assumptions on the part of the court. It is clear, for example, that the plaintiff was fit to drive. What leads to the conclusion that he cannot make long car journeys? In any case, “longer” car journeys are irrelevant because the plaintiff would have been able to visit customers in the area around his place of work. The plaintiff's sales activities did not have to take him continuously and constantly to the outskirts of the sales area assigned to him. In any case, it remains unclear what is meant by “longer” car journeys. In addition, the plaintiff had just taken over the sales area, so customers to be visited would have had to be identified first anyway. 134It should also be taken into account that the evidentiary value of the certificates of incapacity for work has been shaken. The labor court overlooked this. The plaintiff did not substantiately counter the shaken evidentiary value. There is no substantiated statement from the plaintiff as to which illnesses were present, which health restrictions existed and which behavioral measures or medications were prescribed by a doctor. Only knowledge of the circumstances and nature of the injury would have allowed a medical assessment of the effects of the injury on the plaintiff's ability to work. It is not clear whether the plaintiff actually injured himself while unloading his luggage in Q. in the morning, as he recently claimed after several adjustments to his argument, even though he should have been in Q. at that time. It is also not clear which injury the plaintiff claims to have sustained, let alone whether and, if so, how this injury affects the plaintiff's ability to work. In the absence of a substantiated statement by the plaintiff, it can be assumed that he is capable of working. In addition, the carrying out of business trips was ruled out due to the epidemiological situation in Germany at the time of the period in question. 135 To the extent that the plaintiff submitted the events on February 3, 2022 and February 4, 2022 and the alleged violations in a written statement dated April 6, 2023, this is out of time. Regardless of this, the presentation still does not meet the requirements of the case law for the presentation when the evidentiary value of a certificate of incapacity for work is shaken. The plaintiff's statement still leaves it unclear what the nature of his injury was (herniated disc or muscle hardening), what health restrictions were associated with the injury and finally what behavioral measures or medications were prescribed to him by a doctor. 136 Contrary to the plaintiff's opinion, it did not assume that the plaintiff was only partially able to work. The labor court overlooked the fact that it had instructed the plaintiff to concentrate on acquiring new customers and that this instruction did not concern customer visits, but primarily a market analysis of the sales area and the identification and initial contact of potential customers. There were no business trips of any kind. In addition, business trips were excluded due to the epidemiological situation and the resulting ban on face-to-face appointments. 137She was also entitled to have the plaintiff monitored by the detective agency. This measure is generally permissible according to Section 26 BDSG and is suitable, necessary and appropriate in specific individual cases. The plaintiff fails to recognize that the defendant was following up on an initial suspicion based on objective facts. She had no reason to attend a prior hearing. Due to the changed working conditions, she was justified in assuming that the plaintiff was in Q. on February 3, 2022 and February 4, 2022. She was confirmed in this by the plaintiff's email dated March 8, 2022. To the extent that the plaintiff complains that she only monitored him from February 28, 2022, he is contradicting himself. 138Contrary to the plaintiff's opinion, the works council's hearing on the extraordinary termination was legally effective. The principle of subjective determination applies. Incidentally, only facts that are known to the employee and that are potentially important for the works council's statement need to be communicated because they exonerate the employee. These requirements are satisfied. She informed the works council completely and attached the documents, among other things, the content of the plaintiff's email from February 4, 2022, the certificates of incapacity for work submitted by the plaintiff, the detective agency's report, the plaintiff's invitation to the personnel interview and the minutes of the plaintiff's hearing. She also reported the facts on which she based her conclusions and which were initially the reason for the detective surveillance. The assessment of the plaintiff's whereabouts was initially only a reason for detective surveillance. Even taking into account the email from March 8, 2022, she had no reason to assume that he was staying in Q. in violation of the contract. She also heard the plaintiff sufficiently. 139The hearing was not incomplete because it did not refer to the employment proceedings pending at the Mannheim Labor Court. She correctly informed the works council about the change termination procedure so that it could understand its effectiveness and the changed working conditions. With regard to the employment proceedings pending at the Mannheim Labor Court, she did not then and still do not assume that these proceedings, at least insofar as they concern the working conditions alleged by the plaintiff in these proceedings, have any relevance to the question of the effectiveness of the ones she has expressed Terminations due to suspicion of feigning injury. 140The plaintiff's claim to compensation for pain and suffering is not justified in terms of either the reason or the amount. The defendant defends the labor court's ruling. 141First, the defendant complains that the plaintiff does not provide a legal basis for his claim for payment. 142Art. 82 GDPR only affects the way information is obtained and the non-transparent data processing. If, on the other hand, the impairment is linked to the result of the communication process, namely the publication and distribution of the personal data, then only the scope of protection of the general right of personality is affected and application of Article 82 GDPR is out of the question. The plaintiff bases his claim on the violation of general personal rights, but bases this on the unlawful acquisition of information. The labor court interpreted the plaintiff's submissions and, after evaluating the plaintiff's submissions, correctly came to the conclusion that the claim should be assessed in accordance with the principles of Article 82 of the GDPR. 143The labor court did not violate the right to be heard. Rather, the question of non-material damage within the meaning of Article 82 GDPR was the subject of the oral hearing. In any case, the question of damage is irrelevant because there is no unlawful violation of the plaintiff's rights. 144Since the data collection was permissible in accordance with Art. 88 GDPR in conjunction with Section 26 BDSG, the violation of the GDPR required for Art. 82 GDPR was already lacking. There is no fundamental claim for damages. 145No third-party data was collected at any time. In order to clarify what they believed was the suspicion against the plaintiff, it was necessary, among other things, to clarify whether the plaintiff would actually go to a doctor to undergo a medical examination or treatment. The detectives therefore went to the practice group of the doctors treating the plaintiff on Friday, February 25, 2022 at 8:30 p.m. to get an overview and a first impression of the location. For this reason, Friday evening was deliberately chosen because no visit to the practice was expected at that time. On Monday it was only checked whether the plaintiff had gone to the practice. The observation of the home address of the plaintiff's partner also referred to the plaintiff. 146Regardless of this, there is no damage. The labor court correctly recognized this. The mere violation of a norm of the GDPR is not enough to trigger a claim under Article 82 GDPR. Compensation for non-material damage should not extend to a mere nuisance. The plaintiff has not brought forward anything that suggests measurable damage. The plaintiff's entire argument is based on the legal opinion that only the data protection violation gives rise to a claim for damages. This is not the case. 147For further details, reference is made to the exchanged pleadings and their appendices as well as the minutes of the meetings in both instances. 148E N T C H E I D R E A O N S: 149A. The defendant's admissible appeal is unfounded. The plaintiff's admissible appeal was partially successful. 150I. The defendant's appeal is unfounded because the plaintiff's timely application for protection against dismissal regarding the defendant's immediate termination from April 1, 2022 is well founded. The defendant's termination without notice on April 1, 2022 did not terminate the parties' employment relationship because it is legally ineffective in accordance with Section 102 Paragraph 1 Sentence 3 BetrVG. 1511.According to Section 102 Paragraph 1 Sentence 3 BetrVG, a termination is not only ineffective if the employer has terminated without involving the works council at all, but also if he has not properly involved the works council, in particular in accordance with his obligation to inform in accordance with Section 102 Paragraph 1 BetrVG has not been sufficiently complied with (BAG November 3, 2011 - 2 AZR 748/10, juris Rn. 38; BAG July 19, 2012 - 2 AZR 352/11, juris Rn. 41 in each case with further details). 152a) It is true, however, that the obligation to provide information does not have to meet the same requirements as the employer's presentation in the process. The principle of “subjective determination” applies. The works council is properly heard if the employer has submitted to it the circumstances that, from its point of view, justify the termination (BAG 03.11.2011 ibid. Rn. 38; BAG 19.07.20102 ibid. Rn. 41; BAG 16.07.2015 - 2 AZR 15/15, juris Rn. 15; BAG November 19, 2015 - 2 AZR 217/15, NZA 2016, 540 Rn. 44 each with further details). 153b) However, it is not a question of subjective determination if the employer deliberately describes the facts of the case to the works council in a misleading manner so that the reasons for termination appear as convincing as possible. According to the meaning and purpose of the hearing procedure, a consciously and intentionally incorrect or incomplete communication of the reasons for the employer's termination decision is to be treated as a failure to inform the works council. It can consist not only in the preparation of the communicated facts, but also in the omission of information that speaks against the termination and exonerates the employee and leads to the invalidity of the termination in accordance with Section 102 Paragraph 1 Sentence 3 BetrVG if the information is presented or omitted in a deliberately misleading manner Facts do not merely result in an incorrect addition or specification of the stated facts. By making such a representation, the employer not only violates the duty of trusting cooperation that applies in the hearing process according to Sections 2 Para. 1, 74 BetrVG, but also prevents the works council from getting a correct picture of the reasons for the termination (fundamental BAG September 22, 1994 - 2 AZR 31/94, juris para Rn. 21; BAG November 3, 2011 i.a. Rn. 38; BAG July 19, 2012 i.a. O. Rn. 41). 154A "merely" objective misinformation that was avoidable but occurred unconsciously does not in itself lead to the invalidity of the termination. It does not matter whether the employer could have known the correct situation if it had been more careful. What is relevant is whether he is subjectively in good faith and whether the meaning and purpose of the works council hearing has been satisfied despite objectively incorrect information. This is the case in the case of unintentional misinformation if the content of the information corresponds to the employer's actual level of knowledge and the works council can therefore influence the employer's intention to terminate the contract on the same factual basis as the latter (BAG July 16, 2015 ibid. Rn. 17). The employer's subjective belief in the relevance or irrelevance of certain circumstances is not decisive for the scope of the information in accordance with Section 102 Paragraph 1 Sentence 2 BetrVG if this would defeat the purpose of the works council hearing. The employer may not withhold from the works council any circumstances known to him which, when viewed objectively, could have an effect in the employee's favour, because they were not important for his own decision to terminate the contract. In this sense, the works council hearing - based on the employer's subjective level of knowledge - is also objective, i.e. determined by the meaning and purpose of the hearing (BAG July 16, 2015 loc. cit. Rn. 19; BAG 11.19.2015 loc. cit. Rn. 45). 155c) The employer bears the burden of providing evidence and proof of unintentional misleading if the objective data does not match the information provided by the works council. If the employee disputes the “proper” works council hearing, it is the employer’s responsibility to demonstrate its accuracy and completeness. If there are already differences between the objective information situation and the information provided to the works council or if the employee disputes the accuracy of the information provided to the works council, it is the employer's responsibility, for reasons of factual relevance, to explain and, if necessary, prove that he is not aware of the works council misled (BAG September 22, 1994 ibid. Rn. 31; BAG Sept. 3, 1995 ibid. Rn. 36 a.E.). The employer bears the burden of proof for its good faith, i.e. information that corresponds to its own level of knowledge and is therefore bona fide and only objectively incorrect (BAG July 16, 2015 ibid. Rn. 20). 1562. Applying these principles, from which there is no reason to deviate, the Chamber is convinced that the defendant knowingly informed the works council incompletely and misleadingly before issuing the termination without notice on April 1, 2022, based on their own level of knowledge. 157a) The defendant knowingly and intentionally informed the works council incorrectly and incompletely about the reasons for termination that were decisive for its decision to terminate. It is correct that in the hearing letter dated March 28, 2022, the defendant initially described the dismissal facts that, in her opinion, were relevant for “2nd issue”. In the following section "2. Evaluation" (note: number 2 is assigned twice), the defendant then explains b.) what, in its view, constitutes the breach of duty. By feigning his inability to work, the plaintiff violated his employment contractual obligations in a particularly serious manner. The circumstances described then gave rise to the suspicion of faking incapacity to work. In the next point c.) on “2nd assessment”, the defendant carries out the balancing of interests. In the context of this balancing of interests, it takes into account two different circumstances. On the one hand, this is the particular severity of the breach of duty. On the other hand, the length of service is contradicted by the fact that the plaintiff has so far shown himself to be completely unwilling to actually pursue the work assigned to him by way of termination notice. Despite express instructions to the contrary, he refused to manage the CRM and document his sales activities there. He also refuses to acquire orders in the area of responsibility assigned to him. To the extent that the plaintiff did any active work at all (7 weeks), he could not point to any sales activities in the area of responsibility assigned to him. The defendant then concludes by stating that the plaintiff's behavior as a whole documents his unwillingness to perform his work properly and in accordance with instructions. The seriousness of the breach of duty justifies their interest in terminating the employment relationship. The defendant thus clearly expresses that the decisive fact for its decision to terminate the contract was also the plaintiff's assumed refusal to provide the services owed under the employment contract after the change in termination. Taking this fact into account, the overall view is that the plaintiff is not prepared to perform his work properly and in accordance with instructions. 158b) However, in the facts of the case that it communicated to the works council in this context, the defendant omits an essential circumstance that could potentially exonerate the plaintiff. The plaintiff is of the opinion that he is very willing to carry out the tasks he owes after the termination of the change. The plaintiff therefore undisputedly filed a lawsuit with the Mannheim Labor Court for what he considered to be contractual employment. He is essentially of the opinion that the defendant has assigned the tasks assigned to him by notice of change to someone else and instead assigned him inferior tasks. It is not important at this point whether this is true. However, this is an important circumstance that could potentially exonerate the plaintiff. At this point, the employer is giving a one-sided description of her view of the overall assessment on this point. She omits the circumstance of the employment action brought that was potentially exculpatory for the plaintiff due to the employment contrary to the contract accepted by the plaintiff. The defendant did not put the works council in a position to get an accurate and complete picture of the reasons for the termination. Insofar as the defendant stated in the trial that it assumed and still assumes to this day that the proceedings before the Mannheim Labor Court - insofar as they concern the working conditions alleged by the plaintiff in these proceedings - have no relevance to the termination given due to the Suspicion of faking an injury, this is not the case, according to the defendant's own works council hearing. There it expressly refers to the plaintiff's alleged refusal in what it assumed was a complete unwillingness to actually carry out the tasks assigned to him by way of the change notice. In her overall assessment, she also justifies the plaintiff's lack of willingness to work. 159c) The incomplete information of the works council in the sense described above is not objective misinformation, which was avoidable but merely occurred unconsciously. Rather, the defendant deliberately omitted the employment lawsuit that the plaintiff was aware of from the works council hearing. The defendant was undisputedly aware of the employment lawsuit and the plaintiff's argument therein that, in his view, he should be employed in violation of the contract. She herself stated on page 12 in the defense of July 29, 2022 that the plaintiff had made a claim against her at the Mannheim Labor Court on February 4, 2022 - and thus 20 working days after starting work - for contractual employment. The defendant then states itself that the plaintiff in the statement of claim alleges a transfer to a fictitious position in violation of the contract and employment with inferior tasks and responsibilities that do not correspond to the change offer from the notice of change. Based on her own knowledge, the defendant did not inform the works council in good faith and only provided objective errors. To the extent that the defendant has objected in writing at this point that it assumed that the lawsuit for contractual employment had no relevance to the termination due to the suspicion of feigning an injury, this is irrelevant for two independent reasons. On the one hand - as explained - the scope of the information in accordance with Section 102 Paragraph 1 Sentence 2 BetrVG does not depend on the employer's subjective belief in the relevance or irrelevance of certain circumstances if this would defeat the purpose of the works council hearing. In this respect, the works council hearing is also objectively determined by the meaning and purpose of the hearing. That's exactly how it is here. In the hearing, the defendant also focuses primarily on the plaintiff's alleged refusal to work, but omits his known statement in the form of the employment lawsuit. Regardless of this and independently, the Chamber, after assessing all the circumstances, is convinced that the defendant ultimately deliberately omitted the employment lawsuit. Otherwise she described the matter comprehensively. She also named another procedure in the works council hearing, such as the outcome of the change protection lawsuit, in order to show, after her own admission, how the working conditions had changed as a result. If, in the works council hearing, it also focuses on the plaintiff's alleged refusal to work and omits his employment complaint, this only allows the chamber to conclude, even after assessing all the circumstances, that the defendant wanted to present the hearing in a more favorable way from its point of view. The question of the works council hearing and the question of bringing the procedure for contractual employment into the works council hearing was discussed again with the parties at the meeting. No aspects were presented that would justify an assessment other than that made here. 160II.The plaintiff's appeal is partially successful. The defendant is obliged to pay the plaintiff compensation of EUR 1,500.00 in accordance with Article 82 (1) GDPR. The plaintiff is not entitled to any further compensation. 1611. The plaintiff's application for payment, which he is pursuing with the appeal, is admissible. 162a) According to Article 82 (1) GDPR, any person who has suffered material or non-material damage due to a violation of this regulation is entitled to compensation from the controller or the processor. The plaintiff is asserting such a claim here, even if he speaks of compensation for pain and suffering in the application. In doing so, he is only expressing that he is not concerned with material compensation, but rather the non-material compensation, which is to be distinguished from it, in accordance with Article 82 Para. 1 GDPR (see Section 15 Para 1 and 2 AGG: BAG February 16, 2012 - 8 AZR 697/10, juris para. 21), which the chamber described as compensation. The plaintiff expressly assumes this when he bases his request on Art. 82 Para. 1 GDPR and states that a serious violation of personality is not relevant and that the observation by a detective constitutes non-material damage within the meaning of Art. 82 GDPR. The defendant understood the claim in the same way, but assumes that the data processing was carried out lawfully and, in particular, that a violation of the GDPR alone does not represent any damage. 163b) The payment application is sufficiently specific within the meaning of Section 253 Paragraph 2 No. 2 ZPO. For the compensation claim asserted here, it is sufficient for the plaintiff to state the facts that the court should take into account when determining the amount and to specify the magnitude of the asserted claim. In addition, it should be noted that in the context of the civil proceedings here, data protection violations are not to be examined ex officio, but rather the plaintiff, through his presentation of facts within the framework of the disposition maxim, determines the subject matter of the dispute, which is to be examined for a possible violation in the sense mentioned above (cf . LAG Düsseldorf March 11, 2020 - 12 Sa 186/19, juris para. 125). These requirements are met. Although the plaintiff left the amount of the claim at the discretion of the court, he also specified an order of magnitude in the form of a desired minimum amount. The plaintiff also stated what he considered to be inadmissible data usage, namely the complete surveillance of his person and his living environment, including the owner query he accepted, by the detective agency commissioned by the employer. 1642.The claim to compensation for non-material damage is justified in accordance with Art. 82 Para. 1 GDPR in the amount of 1,500.00 euros. 165a) The requirements of Article 82 Para. 1 GDPR are basically met. 166aa)The plaintiff is entitled to claim as a natural person. The defendant is the responsible party as a legal entity within the meaning of Article 4 No. 7 GDPR. It is undisputed that the company commissioned the detective surveillance of the plaintiff through its managing director and thus decided on the purposes and means of processing the plaintiff's personal data. This is data processing within the meaning of Art. 4 No. 2 GDPR because data about the plaintiff was collected and used (see BAG February 19, 2015 - 8 AZR 1007/13, juris Rn. 23). 167bb) There is a violation of the provisions of Article 82 GDPR because the detective surveillance of the plaintiff as data processing in the present case was disproportionate and therefore unlawful. 168(1) The Chamber initially assumes, with reference to the recital in 146 sentence 5, that for a violation "of the regulation" a violation of the delegated acts and implementing acts as well as the more precise legal provisions of the Member States is sufficient (e.g. Quaas in BeckOK data protection law, Wolff/Brink/v. Ungern-Sternberg, as of: May 1, 2023, Art. 82 GDPR para. 15). This is a violation of Section 26 Paragraph 1 BDSG because the surveillance of the plaintiff was disproportionate. Section 26 Paragraph 1 BDSG regulates data processing for the purposes of the employment relationship. It should be a regulation based on Art. 88 GDPR. A violation of Article 26 Para. 1 BDSG therefore also means a violation of the GDPR, because national law only shapes the GDPR in this respect. 169(2) It remains unclear whether Art. 26 Para. 1 BDSG must remain inapplicable because it does not comply with the requirements of Art. 88 Para. 2 GDPR and also does not meet the requirements of Art. 6 Para. 3 GDPR (cf . on this ECJ March 30, 2023 - C-34/21, juris). If this were the case, then the processing of personal data in the employment context in the private sector would be directly regulated by the provisions of the GDPR (ECJ March 30, 2023 - C-34/21, juris Rn. 84). If applicable. Art. 6 Para. 1 b) GDPR would come into consideration here if the processing is necessary for the fulfillment of a contract or Art. 6 Para. 1 f) GDPR if the processing is necessary to protect the legitimate interests of the person responsible, provided that do not outweigh the interests or fundamental rights and freedoms of the data subject that require the protection of personal data. Here, the aspect of the necessity of data processing comes into consideration as a prerequisite for the offense. At the same time, the principle of data minimization from Art. 5 Para. 1 c GDPR must be observed. Accordingly, the processing of personal data must be appropriate and relevant to the purpose and limited to what is necessary for the purposes of the processing. Nothing different applies to Art. 9 GDPR, which concerns health data. The aspect of necessity and data minimization must also be taken into account here in any case (see also final application GA Sánchez-Bordona of May 25, 2023 C-667/21 on the relationship between Articles 6 and 9 GDPR). All of these requirements are not met either. 170(3) The data processing in the form of detective surveillance of the plaintiff was not necessary and at the same time disproportionate. Data processing was not limited to what was necessary. 171 (3.1.) Regarding Section 32 Paragraph 1 BDSG old version, the Federal Labor Court assumed the following for the admissibility of covert observation by a detective: Personal data of an employee may be collected, processed or used for the purposes of the employment relationship, among other things, if this is for its implementation or termination is necessary (BAG June 29, 2017 - 2 AZR 597/16, juris para. 26). According to the jurisprudence principles summarized in Section 32 BDSG old version - provided that less intrusive means of clarifying the suspicion have been exhausted without results, covert surveillance is practically the only remaining means and it is not disproportionate overall - interference with the general personal rights of employees through, for example, . Covert (video) surveillance is not only permissible if there is a concrete suspicion of a criminal act, but also if there is a corresponding suspicion of other serious misconduct to the detriment of the employer (BAG June 29, 2017 - 2 AZR 597/16, juris Rn . 29). In order to maintain proportionality in the case of a certified certificate of incapacity for work, there must be reasonable doubts about the correctness of the medical certificate in order to be able to accept a suspicion of feigning incapacity for work that requires clarification (BAG February 19, 2015 - 8 AZR 1007/13, juris Rn. 25; BAG June 29, 2017 - 2 AZR 597/16, juris para. 40). The question must also be asked whether other educational measures that were equally effective but less intrusive on the employee's right to informational self-determination were available (BAG June 29, 2017 - 2 AZR 597/16, juris para. 41). In the scope of application of Art. 26 BDSG, no lower requirements apply (cf. e.g. the substantive examination at LAG Hessen October 18, 2021 - 16 Sa 380/20, juris Rn. 126 ff.). And Art. 6 Para. 1 b) and f) GDPR as well as Art. 5 Para. 1 c GDPR and Art. 9 GDPR do not impose any lower requirements. 172 (3.2.) First of all, the adjudicating chamber assumes that the evidentiary value of the certificate of incapacity for work submitted by the plaintiff dated February 4th, 2022 for the period from February 4th, 2022 to February 18th, 2022 and that of February 17th, 2022, the incapacity for work continues until March 4th .2022 attested, is not shaken. First of all, the fact that the second certificate dated February 17, 2022 was not drawn up on the form for certificates of incapacity for work is not likely to undermine its evidentiary value. The medical care center that had previously treated the plaintiff issued the signed certificate on their stationery. From this there can be no doubt as to the correctness of the content. The relevant circumstance on which the defendant relies is that the plaintiff submitted a certificate dated February 4th, 2022 from a practice in Q. because it was of the opinion that he was going to work in Q. on that day after the change in working conditions I didn't have to stop in Q. It is true that after the change notice was given, the wording suggests that the plaintiff was contractually obliged to work in Q. A precise place of work was defined and the plaintiff was also offered support with the move. The notice of change no longer contained any agreement regarding home office. On the other hand, it should be taken into account that the other working conditions should continue to apply unchanged. Previously there was an office and the home office as a regular place of work. Such a differentiation was now missing, which speaks for a permanent place of work in Q. On the other hand, the defendant did not demand back the home office equipment provided to the plaintiff even after the change was terminated and work began and continued to pay the home office flat rate. Against this background, she could not assume that the plaintiff actually believed that he could no longer use a home office at all, not even on a daily basis. She therefore had to at least expect that the plaintiff would go to the home office in Q. on a Friday. In this situation, the defendant could not conclude that the plaintiff's inability to work was faked from the fact that the plaintiff had visited a doctor in Q. and reported by email on February 4, 2022 that he had injured himself outside of working hours. The fact that the plaintiff drove from Q. to Q. on the evening of February 3rd, 2022 to go to the home office in Q. and then injured himself outside of working hours in Q., without this also constituting a commuting accident, was irrelevant another conceivable alternative. The plaintiff's list of his working hours from March 8, 2022 does not speak against this, because this was not yet available when the defendant's detective agency was commissioned. This could therefore not be used as a clue to undermine the evidentiary value of the certificate of incapacity for work and justify the detective surveillance from February 25, 2022 to March 4, 2022. But the information “Q., Office” for calendar week 5, in which February 4th, 2022 was, was also not sufficient. The "Office" information was under the "Activity" column. In the remaining weeks, the plaintiff stated that he was “sick” as an activity when he was sick. It is undisputed that the plaintiff did not work at all on February 4, 2022. The specification of activity “Office” in Q. could therefore not have been correct for February 4th, 2022. When asked at the meeting, the plaintiff explained this by saying that he had only given weekly information and that he had been in Q. until Thursday. The information therefore remains incorrect, but in the overall assessment - even if it were taken into account - it is not suitable to undermine the evidentiary value of the certificate of incapacity for work. Nothing else follows from the fact that the plaintiff had already canceled a conversation on March 18, 2020 for reasons of inability to work and the plaintiff had canceled another appointment on November 30, 2021 for health reasons. These are - also taking into account the hotel bookings - two individual cases, one of which occurred a long time ago - which are not suitable to justify the impression that the plaintiff takes refuge in feigned inability to work if necessary. The controversy on February 3rd, 2022 does not change that. There was an actual conflict about what actual work the plaintiff was owed. Overall, for the adjudicating chamber, the given circumstances are not sufficient to undermine the evidentiary value of the two certificates of incapacity for work for the period from February 4th, 2022 to March 4th, 2022. 173(3.3.) Even if one wanted to assume that the evidentiary value of the certificates of incapacity for work was undermined, the covert surveillance of the plaintiff by a detective agency initiated by the defendant would not have been necessary, regardless of the above statements. This was disproportionate because the defendant had access to educational measures that were equally effective but less intrusive on the employee's right to informational self-determination. The plaintiff had already openly communicated in the email dated February 4th, 2022 that he had injured himself outside of working hours today, i.e. on February 4th, 2022. He then submitted a certificate of incapacity for work from the medical care center in Q., which was received by the defendant on February 7, 2022. The plaintiff did not hide the fact that he was at a doctor in Q. on February 4, 2022 and, given the distance between Q. and Q., must have been there during the day. It would have been easily possible for the defendant to first hear the plaintiff on the question of why he was in Q. on Friday and how he got injured if, from their point of view, there had been doubts about his inability to work. It would then have been easily possible for the plaintiff to have explained his stay in Q. as he did last in the trial, as well as the injury, the timing on February 3rd, 2022 and February 4th, 2022, as well as the specific physiotherapy prescribed for him. It is true that the plaintiff could have argued that he was not obliged to make such extensive statements for reasons of data protection. This may be true. However, he can, with his consent, disclose this data, so that the corresponding hearing requested by the plaintiff in the process was not hopeless from the start. Otherwise, data protection would mean that such factual investigation would have to be omitted in order to possibly draw the conclusion that covert detective surveillance would be permissible. If one were to assume that the evidentiary value of the certificates of incapacity for work were shaken, it would have been incumbent on the defendant to first hear the plaintiff before the surveillance. If he had entered the trial as he did recently, there would no longer have been any urgent suspicion that he was faking his inability to work, which would justify detective surveillance. The plaintiff would then have plausibly explained the process, the illness and his presence in Q. 174 In this respect, the Chamber does not accept the defendant's submission that the plaintiff did not meet his secondary burden of proof. The plaintiff recently described exactly how and when he drove from Q. to Q. He further described in detail how he sustained the injury while carrying his suitcase up the stairs and stated what happened as a result, although the herniated disc remained only a guess, although the massive and painful hardening of the muscles was confirmed. He specified the therapy, namely physiotherapy, and named the specific dates. He also specified the further rules of conduct. Sitting for long periods of time and traveling by car were not recommended by the doctor, but standing activities were recommended. If one takes this statement into account, there is no urgent suspicion of feigning incapacity for work for the office work owed by the plaintiff. Office work typically involves sitting for long periods of time. If the defendant believes that the activity should also be carried out while standing or lying down, this does not change anything. This would mean at best an irrelevant partial work ability. The question of car journeys was not at all important. However, it should be noted that, according to the works council hearing, the defendant assumes that, from its perspective, the plaintiff's injury would not have prevented the holding of customer appointments. When asked at the appointment, the defendant was unable to explain why she stated this there when she later stated that the plaintiff was not obliged to make any customer appointments due to instructions and corona-related reasons. 175Indicatively, the fact that the plaintiff, when asked, plausibly explained the process, the illness and his presence in Q. in his last statement is confirmed by the result of the detective surveillance. In any case, this only refers to the period from February 25th, 2022 to March 4th, 2022, i.e. only to the last week of the disputed inability to work. Circumstances that support the suspicion that the plaintiff was faking his incapacity for work did not arise from the assessment of his statement. He has only been seen on short car journeys. The plaintiff declared the items carried on February 25, 2022 (in the detective report February 28, 2022) to be cardboard without being contradicted. This does not contradict his admission of incapacity for work. Nothing different applies to the light box of food carried on March 1st, 2022. And at least the detective confirmed on March 1, 2022 that the plaintiff dragged his left leg while walking. This speaks more of a healing injury, as the plaintiff described it. The observations on March 4, 2022 concern the last day of the disputed incapacity for work anyway. If applicable. The plaintiff may have already largely recovered, especially since he himself spoke of improvement after the first therapies. Overall, the circumstances identified by the defendant are not sufficient to convince the Chamber to justify an urgent suspicion of faking incapacity to work. 176Only if the plaintiff had refused to provide further information when asked would covert detective surveillance in this case have been considered if the evidentiary value of the certificate of incapacity for work was assumed to be shaken. 177b) The adjudicating chamber considers compensation of 1,500.00 euros to be appropriate in this specific case. The plaintiff is not entitled to a higher claim. 178aa) Contrary to the defendant's opinion, a claim for compensation for the plaintiff's non-material damage is not ruled out because this is a mere violation of the provisions of the GDPR, which alone is not sufficient to justify compensation. It is correct, however, that the ECJ has now stated in its judgment of May 4, 2023 (C-300/21, Rn. 28 ff., 42) that Article 82 (1) GDPR must be interpreted as meaning that the mere violation of the provisions of this Regulation are not sufficient to give rise to a claim for non-pecuniary damages. On the other hand, the ECJ recognized in the above-mentioned decision that the concept of non-material damage must be defined autonomously and uniformly under EU law. This does not exempt the person concerned from proving that the violation of the GDPR had negative consequences for them, which constitute non-material damage. On the other hand, there is no requirement that the non-material damage suffered by the person concerned has reached a certain degree of significance (ECJ May 4, 2023 - C-300/21, Rn. 43 ff., 50, 51). 179bb) Applying these principles, the plaintiff has also demonstrated his own non-material damage in the sense of negative consequences. First of all, as the plaintiff correctly explained, it is no longer necessary to establish a serious violation of personal rights. Article 82 (1) GDPR does not set such a relevance threshold (as already LAG Hessen October 18, 2021 - 16 Sa 380/20, juris Rn. 123). Contrary to the defendant's opinion, the covert surveillance of the plaintiff by the detective agency using the images he took is not just a mere violation of the provisions of the GDPR, which is not sufficient to justify a claim under Article 82 Paragraph 1 of the GDPR. Covert surveillance by a detective is correctly classified as immaterial damage (cf. already BAG February 19, 2015 - 8 AZR 1007/13, juris para. 29 f. and for the GDPR LAG Hessen October 18, 2021 - 16 Sa 380/20, juris Rn. 123; Bergt in Kühling/Buchner, DS-GVO BDSG, 3rd edition 2020, Art. 82 Rn. 18c; Spittka GRUR-Prax 2019, 475, 476). Contrary to the view of the labor court, the hearing chamber is convinced that it is irrelevant that the plaintiff was initially monitored unnoticed. This does not change the fact that there is already a negative loss in the monitoring itself in the sense of the negative consequences of inadmissible data processing required by the ECJ. Through the observation, the plaintiff himself becomes a mere object of data processing. He loses control over his own data in the form of observation and photography. The Chamber is convinced that this alone constitutes immaterial damage. It is correctly pointed out that loss of control is expressly mentioned as an aspect of the damage in recital 75 of the GDPR, namely when the persons concerned are deprived of their rights and freedoms or are prevented from doing so to control the personal data concerning you (Kühling/Buchner, DS-GVO BDSG, 3rd edition 2020, Art. 82 Rn. 18b; a.A. Higher Regional Court Innsbruck/Z. - February 13, 2020 - 1 R 182/19b, point. II.9; available on the Internet at https://360.lexisnexis.at/d/ Decisions-ris/olg_innsbruck_1r18219b/u_zivil_OLG_Innsbruck_2020_JJT_20200213_1afc830ac9). According to recital 75, this applies in particular if, as here, health data is to be collected in order to evaluate aspects of work performance. Regardless of this, the plaintiff here gained knowledge of the covert video surveillance through the introduction of the detective report into the proceedings. He correctly states that because of this, he can no longer be sure that he is being secretly observed by the defendant in his private environment. Even if - as stated - this is not necessary, the plaintiff has actually specifically shown a negative consequence that affects him. The other non-material damage cited by the plaintiff in the first instance was no longer relevant. The labor court correctly stated that non-material damage could not be based on the plaintiff being followed into his apartment by a violent criminal during his studies. This circumstance, which was not described in more detail and was legitimately disputed by the defendant due to lack of knowledge, was neither further substantiated nor proven by the plaintiff. It remained that way in the second instance. 180Insofar as the plaintiff claims that there was non-material damage in the surveillance of the practice group L. in Q. and the home of the plaintiff's former partner, the following applies: First of all, they may have their own claim under Article 82 Paragraph 1 GDPR to. In any case, it is not apparent that the plaintiff himself was observed there. However, this does not change the fact that the monitoring of these two areas resulted in the plaintiff's area of life being potentially comprehensively examined. However, this must also be taken into account when determining the amount of the compensation claim to be assessed here. 181cc) After assessing all the circumstances, the adjudicating chamber considers compensation totaling 1,500.00 euros to be appropriate in the specific case. 182(1) Article 82 of the GDPR is to be interpreted as meaning that when determining the amount of damages owed on the basis of the claim for damages enshrined in this Article, national courts must apply the national provisions of each Member State on the extent of financial compensation, provided that the EU law principles of equivalence and effectiveness are observed (ECJ May 4, 2023 - C-300/21, para. 59). The degree of fault of the person responsible is not important for determining the amount of non-material damage to be compensated in accordance with Article 82 (1) of Regulation 2016/679 (Opinion GA Sánchez-Bordona of May 25, 2023 C-667/21). 183In the absence of relevant Union law provisions, the amount of damage must be determined in accordance with Section 287 Paragraph 1 Sentence 1 ZPO, according to which all circumstances of the individual case must be assessed. Art. 82 GDPR itself does not regulate any procedural modalities for enforcing a claim for damages. Article 79 (1) of the GDPR simply provides that every data subject has the right to an effective judicial remedy if he or she is of the opinion that the rights to which he or she is entitled under the GDPR have been violated as a result of the processing of his or her personal data not in accordance with his or her requirements were injured. The principle of equivalence or effectiveness is taken into account through the application of Section 287 Paragraph 1 Sentence 1 ZPO. The provision also applies in national law when enforcing other claims for non-material damages (BAG May 5, 2022 - 2 AZR 363/21, juris Rn. 14). 184When assessing the amount of non-material damage, an important factor to be taken into account is the intensity of the violation of personal rights. In which specific situations did the observation take place? Were these image recordings from the intimate or private sphere or those from the public sphere (e.g. street and laundromat). Were they simply observed or were the observations recorded using images and/or video? To whom was the data passed on? Were they third parties or were excerpts simply presented in court proceedings? (see already BAG February 19, 2015 - 8 AZR 1007/13, juris para. 33). It should also be taken into account that the claim under Article 82 Para. 1 GDPR also has a preventive character and must therefore also fulfill a deterrent function, which can ultimately be derived from the aspect of effectiveness. Even an amount of 1,000.00 euros can have not only a symbolic but also a deterrent character (see BAG May 5, 2022 - 2 AZR 363/21, juris paras. 24 and 25). The non-material damage according to Art. 82 Para. 1 GDPR also has no discernible connection to the amount of remuneration to which the creditor is entitled, so that there is no indication that this could be a relevant assessment criterion for the amount of damages (BAG 05.05. 2022 - 2 AZR 363/21, juris para. 26). 185(2) Applying these principles, the adjudicating chamber considers a total compensation of 1,500.00 euros to be appropriate. This results in particular from the following: The chamber took into account that the detective agency did not limit itself to simply observing and photographing the plaintiff in public. It is true that this also happened. He was observed and photographed while shopping, i.e. when visiting an Edeka market, a bathroom studio in the parking lot there and in the parking lot of a beverage store. The car battery was also lifted out of his car on a public street. The detective agency didn't stop there. She also observed the plaintiff in his private life. So she inspected his house and took photos. She also observed and photographed the plaintiff carrying out activities on his own property on the terrace. It is true that this area was certainly visible from outside the property. However, this does not change the fact that the terrace is also part of the plaintiff's private living environment. The Chamber also assumes that the detective agency carried out observations for the longer period of time assumed by the plaintiff. The defendant did not comment in more detail on the plaintiff's specific statements about the scope of the detective agency's activities based on the fee rates. The plaintiff's submission must therefore be taken as a basis. However, this affects the temporal dimension. However, a different and deeper level of intervention than the documentation used in the report remains pure speculation and cannot be taken as a basis. On the other hand, it should be taken into account that the data processing was aimed at particularly protected data within the meaning of Article 9 Paragraph 1 GDPR, namely health data. On the one hand, this was the intention, because it was about alleged incapacity to work. This is also evident from the fact that such data was also collected and documented, such as the dragging of the left leg. The Chamber also acknowledged that the plaintiff should be observed in his reference environment, even if he was not found there (doctor's office and partner). This must be taken into account when determining the amount of the claim in favor of the plaintiff. Insofar as the plaintiff relies on the owner query he accepted, which revealed that his Mercedes is a US model, the chamber assumes that this was actually done by the detective agency. However, the defendant did not provide any concrete and substantiated factual presentation. In this respect, too, there is a loss of control of personal data, although the Chamber is convinced that this only slightly increases the non-material damage. The chamber further acknowledged that the defendant did not pass on the detective report to external third parties, but only used it as part of the works council hearing and the legal proceedings. The plaintiff did not demonstrate any specific psychological stress other than the actual loss of control and the uncertainty about data control caused by the surveillance and additional photo documentation. Overall and taking into account all the circumstances, the chamber considers an amount of 1,500.00 euros to be appropriate as compensation. 186c) The interest claim is based on §§ 288 Para. 1, 291 BGB. 187B.The decision on costs is based on Section 92 Paragraph 1 ZPO. 188C. The court allowed the appeal in accordance with Section 72 Paragraph 2 No. 1 ArbGG for both parties to the extent that they were unsuccessful in their claim for compensation. Otherwise, there was no reason for allowing the appeal pursuant to Section 72 Paragraph 2 of the ArbGG. 189 LEGAL REMEDIES INSTRUCTIONS 190 This judgment can be appealed by both parties 191REVISION 192can be filed to the extent that they are unsuccessful in terms of the compensation claim. 193The revision must be submitted in writing or in electronic form within an emergency period* of one month 194Federal Labor Court 195Hugo-Preuß-Platz 1 19699084 Erfurt 197Fax: 0361 2636-2000 198can be inserted. 199The emergency period begins with the delivery of the judgment in full form, at the latest five months after the announcement. 200For lawyers, authorities and legal entities under public law, including the associations formed by them to fulfill their public tasks, from January 1st, 2022 in accordance with Sections 46g Sentence 1, 72 Paragraph 6 ArbGG, there is a fundamental obligation to submit the audit exclusively as an electronic document to submit. The same applies to authorized representatives for whom a secure transmission channel is available in accordance with Section 46c Paragraph 4 No. 2 ArbGG. 201The notice of appeal must be filed by an authorized representative. Only the following are permitted as authorized representatives: 2021.Lawyers, 2032. Trade unions and associations of employers as well as associations of such associations for their members or for other associations or associations with a comparable orientation and their members, 2043. Legal entities whose shares are all beneficially owned by one of the organizations specified in number 2, if the legal entity exclusively provides legal advice and litigation representation for this organization and its members or other associations or groups with a comparable orientation and their members in accordance with their statutes, and if the organization is liable for the activities of the authorized representatives. 205In the cases of numbers 2 and 3, the persons who sign the appeal must be qualified to hold judicial office. 206A party who is admitted as an authorized representative can represent themselves. 207The electronic form is preserved by an electronic document. The electronic document must be suitable for processing by the court and must be provided with a qualified electronic signature of the person responsible or signed by the person responsible and sent via a secure transmission channel in accordance with Section 46c ArbGG in accordance with the more detailed provisions of the Ordinance on the Technical Framework Conditions for Electronic Legal Transactions and via the special electronic authority mailbox (ERVV) v. November 24, 2017 in the current version. Further information on electronic legal transactions can be found on the Federal Labor Court website www.bundesarbeitsgericht.de. 208* an emergency period is unchangeable and cannot be extended. 209Dr. GotthardtKraemer Hoffmann-Gaubig
