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By Olga Stepanova – German Attorney at Law at WINHELLER

An ever increasing number of employers are considering to monitor their employees by video surveillance if they suspect them of not fulfilling their duties under the employment contract.

In this context, the Federal Labor Court (BAG) recently ruled that recordings obtained by an open and lawful video surveillance may be stored and evaluated by employers. However, this only applies if labor law allows the employer to penalize an employee’s breach of duty. With this ruling, the Federal Labor Court set aside the judgments of previous instances which had held that storing video sequences for a longer period was a data breach.

Video evidence: An employee embezzling money

The employee who filed action worked in a tobacco and newspaper shop, in which the employer had installed an open video surveillance system. With the recordings, he wanted to protect his property from criminal acts committed by both customers and his own employees.

When the employer discovered a deficiency in tobacco products in the 3rd quarter of 2016, he evaluated the video recordings in August 2016. The material showed that the employee did not put money into the cash box as she was supposed to in February 2016. Following this detection, the employer dismissed her without notice for good cause.

For how long may employers store video recordings in Germany?

The employee filed an action against her employer for protection against unfair dismissal, which was successful in the previous instances. The regional labor court of Hamm (LAG) ruled that the court use of the video recordings was prohibited because the employer was obliged to delete the image sequences without delay and in any event well before August 2016. The regional labor court held that by failing to do so, the employer had violated his obligation to delete the data immediately when no longer needed for fulfilling the purpose or when the legitimate interests of the person affected preclude continued storage.

As a consequence the court use of the video recordings was inadmissible so that the employer had no admissible evidence to substantiate the “good cause” for the dismissal of the employee.

Employers are not obliged to evaluate video material immediately

The Federal Labor Court quashed this judgment and remanded the case back to the regional labor court to be heard and decided again. In case the video surveillance was lawful, the processing and use of the relevant image sequences was admissible and did not violate the employee’s general right of personality. According to the Federal Labor Court the employer was not obliged to evaluate the video material immediately but had the right to wait until there was a legitimate occasion to do so. Even the provisions of the current General Data Protection Regulation, applicable since May 25, 2018, would not prevent with the court use of the video recordings.

With this judgement, the Federal Labor Court has clearly rejected the opinion that recordings obtained by open and lawful video surveillance have to be deleted within a few days. In fact, they may be evaluated even after several months.

WINHELLER advises on the admissibility of video surveillance in the workplace

The question as to whether video surveillance in the workplace is admissible or not regularly leads to conflicts. Prior to starting a video surveillance, an employer should therefore seek comprehensive advice on whether the planned project complies with labor law and data protection regulations. Our attorneys specializing in labor and privacy laws will be pleased to assist you.



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