July 25, 2023 /
Video cameras can be used to document misconduct in the workplace and subsequently introduced as part of an action for unfair dismissal, even if the recording violates data protection law. Data protection is not intended to protect offenders. The BAG recently ruled (judgment of 29.06.2023, ref. 2 AZR 296/22).
In June 2018, an employee in a foundry allegedly left the factory premises before the start of his shift in his role as team spokesperson and still received his wages for the day. Following an anonymous tip-off, the surveillance cameras were analyzed, which showed that the employee had left the premises before the start of the shift. The employee was dismissed without notice, or alternatively with notice.
The employee filed an action for unfair dismissal with the competent labor court because, according to him, he arrived at work on time and completed his shift as usual. When the surveillance video was then presented as evidence of his absence, the employee objected to the video being taken into account, as in his opinion the surveillance violated data protection law at federal and EU level. Information signs indicated a maximum storage period of 96 hours, which had been exceeded in this case. A company agreement also prohibited personal use of the recordings.
According to the employee, the video recordings were therefore subject to a prohibition on exploitation. Both the Labour Court and the Lower Saxony Higher Labour Court (LAG) followed the line of argument and upheld the action for unfair dismissal (judgement of 6 July 2022, Ref. 8 Sa 1149/20).
The BAG overturned the decision of the LAG and referred the case back to the court. The judges of the BAG found that it is irrelevant for the usability of the employee’s personal data collected in labor court proceedings whether the video surveillance fully complies with the provisions of the Federal Data Protection Act and the General Data Protection Regulation (GDPR). This applies in particular if there is an intentional wrongdoing and the surveillance camera is clearly recognizable.
According to the Federal Labor Court, a possible breach of data protection regulations does not automatically lead to a ban on the use of evidence. Rather, the court of factmust weigh up the conflicting interests, similar to non-standardized prohibitions on the use of evidence in criminal proceedings.
In cases of termination without notice due to intentional misconduct, the BAG is of the opinion that the employer’s interest in clarifying the facts of the case outweighs the employee’s data protection interests. An exception is the case of a serious violation of fundamental rights through open surveillance measures, which was not the case here. The obvious nature of the surveillance played a decisive role here.
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