BAG gives its verdict on admissibility of video recordings in wrongful termination proceedings

News  >  BAG gives its verdict on admissibility of video recordings in wrongful termination proceedings

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Recordings from overt video surveillance may be admissible in wrongful termination proceedings. That was the outcome of a recent case heard by Germany’s Federal Labor Court (case ref.: 2 AZR 296/22).

Data protection, despite its prominence throughout the German legal system, including in the fields of employment and labor law, does not trump all other concerns. Case in point: a ruling of the Bundesarbeitsgericht (BAG) from June 29, 2023, in which the court held that the General Data Protection Regulation (GDPR) does not preclude personal data pertaining to an employee from being admitted in labor courts, reports commercial law firm MTR Legal Rechtsanwälte.

The case addressed the admissibility of recordings captured by a conspicuous video camera located at the gate to the employer’s factory premises, with the camera’s presence being additionally highlighted by a sign. The recordings showed that the employee in question had entered the premises but left again before the beginning of his shift. Accusing the man of seeking to fraudulently take credit for a work shift, the employer issued him with both a summary and – seeking to cover all its bases – an ordinary dismissal notice.

The employee responded by filing for wrongful termination, arguing that the video recordings were not admissible as factual submissions or evidence and therefore could not be taken into account in the context of the proceedings.

While the employee’s legal action initially met with success before the courts, it was the employer who ultimately came out on top in appeal proceedings heard by the BAG. The court ruled that it was certainly possible in cases such as the present one involving overt video surveillance for the recordings to be admissible in wrongful termination proceedings. Whether the surveillance complies with every aspect of the regulations set out in Germany’s Federal Data Protection Act (BDSG) and the GDPR was said to be irrelevant. The BAG went on to clarify that even if this was not the case, the provisions of the GDPR did not rule out the possibility of the personal data relating to the plaintiff being processed by the courts responsible for hearing labor and employment cases. This is certainly the case in instances where the video surveillance is overt and the relevant footage reveals conduct by the employee that amounts to a breach of contract. The court noted that it was not important in these instances how long the employer had waited before inspecting the footage for the first time or how long it had reserved the footage. The case must be now revisited by Lower Saxony’s higher regional labor court – the Landesarbeitsgericht Niedersachsen.

Having strengthened the position of employers with this ruling, the BAG has made it clear that data protection, though important, is not a cover for wrongdoing.

MTR Legal’s team includes lawyers in labor and employment law.

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