BAG: Video recordings potentially admissible in wrongful termination proceedings

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Judgment of the Bundesarbeitsgericht from June 29, 2023 – case no.: 2 AZR 296/22


Video surveillance in the workplace is a common source of controversy, especially when it comes to whether the footage is admissible in wrongful termination proceedings. In a remarkable ruling from June 29, 2023, Germany’s federal labor court – the Bundesarbeitsgericht (BAG) – held that recordings from overt video surveillance can be used in wrongful termination proceedings for the purpose of documenting conduct that constitutes a breach of contract on the part of the employee (ref.: 2 AZR 296/22).


An employee who fraudently records their working hours is guilty of severe misconduct, with this potentially giving rise to serious consequences. The extent to which video recordings can be used to prove working time fraud has been disputed, particularly in light of the important role that data protection and privacy also play in the context of labor and employment law, explains commercial law firm MTR Legal Rechtsanwälte, whose attorneys specialize in this field, among others.


Video recordings prove misconduct


The BAG has since brought clarity with its ruling from June 29. The judges in Erfurt ruled that the use of video footage as evidence of misconduct by an employee may even be permissible in cases where the surveillance measures are not fully in line with data protection laws.


The plaintiff in the case in question, an employee at a foundry, was accused by his employer of leaving the workplace before the end of his shift after having arrived and clocked in on time. The employer substantiated this allegation with footage from the video camera at the gate to the factory premises. The camera was clearly visible and its presence was also highlighted by a sign.


The employer susbequently issued the employee with both a summary and a statutory dismissal notice, which the latter responded to by filing an action for wrongful termination, claiming that he had worked on the day in question and that the video recordings were not admissible as evidence and could not therefore be taken into account in wrongful termination proceedings.


Only inadmissible if there is a serious breach of fundamental rights


Despite the plaintiff’s initial success with his action for wrongful termination before Lower Saxony’s regional labor court – the Landesarbeitsgericht (LAG) Niedersachsen – the ruling was ultimately overturned by the BAG on appeal, with the BAG reasoning that the LAG Niedersachsen ought to have factored the video footage into its decision. It did not matter whether the surveillance complied with the requirements of the German Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR) in every respect. Even if this was not the case, it did not completely preclude the possibility of the labor courts processing the relevant personal information. This is certainly true in cases such as this one where the surveillance is overt and the employee’s misconduct appears to have been deliberate. Indeed, the evidence would only be inadmissible if the public surveillance measures amounted to a serious breach of fundamental rights.


Accordingly, the case has been referred back to the LAG Niedersachsen, which must now rule on whether the dismissal is effective after giving due consideration to the video recordings.


MTR Legal Rechtsanwälte advises on many aspects of labor and employment law, including dismissals.


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