Overt video surveillance footage constitutes admissible evidence

Video surveillance and data protection in the workplace not a contradiction

In the opinion of the BAG, according to this recent decision, overt video surveillance footage can generally be used in unfair dismissal hearings if they are intended to prove an employee’s intentional conduct in breach of contract. This also applied if the surveillance violates data protection law.

In the specific case, the plaintiff was employed by the defendant in a foundry. In June 2018, he was scheduled for a multi-worker shift and accordingly entered the company premises on this day.

Video surveillance as evidence

To the employee's disadvantage, an anonymous tip-off led to the review of video footage recorded by a camera at a gate on the plant premises. Such footage showed that the plaintiff had already left the plant premises before the start of his shift. The general video surveillance could not be overlooked and was also indicated by a pictogram. Thereupon, the plant manager terminated the employment relationship without notice, or alternatively with notice.

Protection against dismissal in Germany and the EU?

In his action for protection against dismissal, the plaintiff claimed that he had duly turned up for work and had also worked. During the proceedings, he objected to the use of the video footage, arguing that it had been stored for too long and that this procedure violated federal and EU data protection law. Furthermore, a company agreement stipulated that video recordings may not be used to evaluate personal data.

The lower courts upheld the action for unfair dismissal. The appeal to the Federal Labor Court was largely successful. It led to the case being referred back to the Regional Labor Court. The latter also had to examine the video recording in question. This resulted from the relevant provisions of Union law as well as national procedural and constitutional law. In this respect, it was irrelevant “whether the surveillance complied in every respect with the requirements of the German Federal Data Protection Act or the General Data Protection Regulation (GDPR)”. The GDPR did not prevent the processing of the employee’s personal data by the labor courts, even in the case of unlawful video surveillance within the meaning of the GDPR.

Video surveillance: What is allowed?

Rather, the trial court had to weigh the conflicting interests. In proceedings for protection against termination without notice due to intentional misconduct, the employer's interest in clarifying the facts outweighs the employee's data protection interests. This did not apply only “if the overt surveillance measure constitutes a serious violation of fundamental rights.” However, due to the obviousness of the video surveillance, this cannot be assumed.

In conclusion, the Federal Labor Court stated in its decision that a works agreement cannot, at least not alone, justify a prohibition on the use of evidence.

Practical advice

Overt video surveillance is a recognized means of prevention and must be recognized as being necessary, even if the use of the footage may be prohibited in case of serious violations. In any case, covert video surveillance must be distinguished from overt video surveillance, as covert surveillance is only permissible within very narrow limits.