Monitoring employees using video surveillance is only permitted within narrow boundaries. Illegal recordings cannot therefore be used as evidence in the context of workplace legal disputes.

There are justifiable reasons for monitoring the workplace using video cameras. Particularly in areas which are accessible to the public such as storefronts, video cameras are a common sight. However, this needs to be readily apparent to customers and employees alike. We at the commercial law firm GRP Rainer Rechtsanwälte also note that the recordings must always be deleted as soon as possible once they are no longer capable of fulfilling their intended purpose or the legitimate interests of the persons’ affected preclude their ongoing storage.

In a case heard by the Landesarbeitsgericht (LAG) Hamm, the Regional Labour Court of Hamm, a storefront had been monitored by three video cameras. This was clearly indicated and the employees were informed. According to the employer, the video surveillance was meant to provide information on criminal offences committed by third parties. The employer went on to claim, however, that an analysis of the video footage also revealed that one of the employees had acquired money or goods by illegal means. The employer terminated the employment relationship with immediate effect and demanded compensation in the amount of approximately 10,000 euros.

The employee in question initially instituted an action for wrongful dismissal but later withdrew this. She nonetheless demanded payment of her outstanding wages and that the claim for compensation be dismissed. The relevant labour court found in favour of the employee, and the employer’s subsequent appeal before the LAG Hamm was unsuccessful.

In its judgment from June 12, 2017, the LAG Hamm held that the employer had not been able to demonstrate misconduct that would justify the extent of the claim for compensation. Furthermore, the video footage could not be used as evidence. The Court went on to say that the video sequences were excluded from being used as evidence for reasons of data protection and individual privacy. It ruled that any data collected must always be deleted immediately once it is no longer required for the purposes of achieving its aim or the legitimate interests of those affected preclude its ongoing storage. The Court proceeded on the basis of a period of one to two or certainly no more than a few business days. In the instant case, the data had been stored for three months. After weighing up the interests of all sides, the OLG found that this data protection violation gave rise to an exclusion of evidence.

Lawyers who are experienced in the field of employment law can advise on all matters pertaining to the workplace.

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