Test purchase - what is allowed?

First of all, we must make a disclaimer : We are not a lawyer and therefore do not offer legal advice. The following information is based on many years of experience and feedback from our customers. It does not claim to be correct or complete.

Mystery shopping is a proven method for gaining objective insights into operational processes. But are there any risks involved? Is it even allowed? At your own branches, at franchisees or even at competitors?

1. test purchases in own stores:

Basically, we have good news: Test purchases in our own stores are permitted. This also applies if they take place undercover.

Test purchases are permitted!

According to Section 242 of the German Civil Code (BGB), companies are obliged to act in accordance with the law in their business dealings. For this reason, companies must ensure that no violations of the law are provoked during the store checks.

In practice, however, this is not a major hurdle, which is why there is nothing wrong with test purchases.

Employees do not need to be informed in advance or asked for their consent. So if you start a project with test purchases, there are basically not many risks for you.

However, in the interests of a good working atmosphere and transparent communication, it is of course advisable to announce mystery shopping projects in advance.

As an interesting special case: According to the case law of the Federal Labor Court (BAG, judgment of 29.04.2021, Ref.: 8 AZR 276/20), it is even possible to have the costs of such checks reimbursed by the employee if there is a concrete suspicion of significant misconduct on the part of the employee.

This very clear regulation applies to all test purchases in which a tester works without technical aids, e.g. by completing a questionnaire afterwards. The situation becomes more complicated if video, photo or audio recordings are required.

2. covert video, photo and audio recordings:

The secret making of audio or film recordings is inadmissible and punishable under § 201 StGB. Even informing employees in advance is not sufficient.

Concealed sound and film recordings are prohibited!

There are very narrow limits within which companies are allowed to make secret audio and video recordings, e.g. if there is concrete suspicion of gross misconduct on the part of the employee. Here too, however, the legal situation is not clear.

A legally secure basis can be created by obtaining the employees' prior consent, for example as part of a works agreement.

It should be noted here that a generally worded consent in the employment contract may be invalid. The decisive factor is a clear provision on both sides (BAG, judgment of 28.10.2010, Ref.: 8 AZR 547/09).

Therefore, before covert recordings are made, this should definitely be legally checked and also discussed internally (e.g. with the works council).

3. use of the results:

In principle, the results of test purchases may be used within the company.

The principles of data protection must be observed, e.g. with regard to publication or disclosure to third parties.

Findings from undercover test purchases, such as the test purchaser's answers in a questionnaire, can also be used under employment law, provided they were obtained in accordance with the law as described above.

4. external mystery shopping agencies:

If external service providers such as mystery agency are commissioned, the same legal principles apply. It is therefore generally permitted. Companies only need to ensure that the contracted agency complies with the applicable laws and regulations and respects the rights of employees.

With professional agencies such as the mystery agency, this is already firmly guaranteed in the offer and strictly adhered to in the project.

5. own branches vs. franchise branches:

The legal situation does not change fundamentally, regardless of whether the stores are company-owned or franchise stores. The same rules apply to both scenarios.

Test purchases are not prohibited even at competitors. If you want to obtain information about your competitors' offerings and processes, store checks are actually very suitable for monitoring the competition.