Recordings from an open video surveillance may be used in an unfair dismissal case. This was decided by the Federal Labor Court on June 29, 2023 (Ref. 2 AZR 296/22).
Data protection also plays an important role in labor law. However, it is not overarching, as the ruling of the Federal Labor Court (BAG) shows. According to this, the use of personal data of the employee by labor courts does not contradict the General Data Protection Regulation (GDPR), as stated by the business law firm MTR Legal Rechtsanwälte, which also advises on labor law.
Specifically, the case before the BAG involved the use of footage from a clearly visible video camera at the factory gate, which was indicated by a sign. The recordings showed that the employee entered the factory premises but left again before the start of his shift. The employer accused the man of attempting to fraudulently claim a ‘work shift’ and issued an extraordinary and alternatively an ordinary dismissal.
The employee filed a wrongful dismissal lawsuit. He argued that the video footage is subject to a prohibition on evidence presentation and use, and therefore should not be considered in the process. The lower courts ruled in favor of the lawsuit.
The employer appealed and was successful. The BAG decided that at least in cases of open video recordings like this, using the footage in a wrongful dismissal proceeding may be permissible. It does not matter whether the video surveillance fully complies with the provisions of the Federal Data Protection Act or the GDPR. Even if this is not the case, the processing of the claimant’s relevant personal data by labor courts is not excluded under the GDPR, the BAG explained. This applies at least when the video surveillance is open and a breach of contract by the employee is at issue, the judges further stated. It is also irrelevant how long the employer waited to initially access the footage or retained the recordings. The Lower Saxony Labor Court must now reconsider the case.
With the ruling, the BAG has strengthened the position of employers. The ruling shows that while data protection is important, it does not equate to protecting offenders.
Experienced lawyers provide advice at MTR Legal Rechtsanwälte on issues of labor law.
Get in contact now!➤ Labor law lawyer – learn more!
