Data protection is not crime protection! No prohibition of exploitation in the case of open video surveillance: A current labor law ruling clarifies!

Even if an employer’s surveillance measure was not carried out in full compliance with the requirements of data protection law, there is generally no prohibition on the use of recordings obtained from open video surveillance in a dismissal protection process. Find out more about the details and legal implications of this judgment in this article.

The case in detail

In the underlying case, the plaintiff was employed by the defendant as a team spokesperson in the foundry. On June 2, 2018, the plaintiff initially entered the factory premises. Based on an anonymous tip-off, the recordings of a video camera at a gate to the factory premises, which was marked with a pictogram and was otherwise clearly visible, were analyzed. The analysis revealed that the plaintiff had left the factory premises before the start of his shift. The defendant then terminated the employment relationship for cause or, alternatively, with notice.

The legal dispute

The plaintiff took action against this dismissal and filed an action for unfair dismissal. He claimed, among other things, that he had worked on June 2, 2018 and that the findings from the video surveillance were subject to a ban on the presentation and use of evidence and therefore could not be taken into account in the unfair dismissal proceedings. Both the labour court and the regional labour court upheld the action for protection against dismissal.

Decision of the Federal Labor Court

The Federal Labor Court (BAG) took a different view and referred the case back to the Regional Labor Court. This court would have to inspect the relevant image sequence from the video surveillance at the gate to the factory premises, even if the surveillance did not comply in every respect with the requirements of the Federal Data Protection Act or the General Data Protection Regulation (GDPR). In the opinion of the BAG, this should apply in any case if the data is collected openly, as in this case, and the employee’s conduct is intentionally in breach of contract.

CONCLUSION

The ruling of the Federal Labor Court provides clarity: Open video surveillance can be used as evidence in dismissal protection proceedings even if it does not fully comply with data protection regulations, as long as it is carried out openly and the employee’s intentional conduct in breach of contract is at issue.