Secret surveillance of employees only permissible in exceptional cases

An employer who assigns the surveillance of an employee to a detective on suspicion of feigned incapacity to work is acting unlawfully if his suspicion is not based on concrete facts. The same applies to secretly produced images. Such an unlawful violation of the general right of personality may give rise to a claim for monetary compensation ("compensation for pain and suffering").

The plaintiff had been working for the defendant as a secretary to the management since May 2011. From 27 December 2011, she was incapacitated for work, initially with bronchial illness. For the period until 28 February 2012, she submitted six certificates of incapacity for work in succession, first four from a specialist in general medicine, then from 31 January 2012 two from a specialist in orthopaedics. The managing director of the defendant doubted the last herniated disc reported by telephone and commissioned a detective to observe the plaintiff. This took place on four days from mid to late February 2012. Observations included the plaintiff's house, her and her husband with their dog in front of the house and the plaintiff's visit to a launderette. Video recordings were also made. The observation report handed over to the employer contains eleven pictures, nine of them from video sequences. The plaintiff considers the commissioning of the observation, including the video recordings, to be unlawful and demands damages for pain and suffering, the amount of which she has left to the discretion of the court. She considers 10,500 euros to be appropriate. The plaintiff had suffered considerable psychological impairments which required medical treatment.

The Regional Labour Court upheld the action in the amount of 1,000.00 Euros. The appeals of both parties before the Eighth Senate of the Federal Labour Court were unsuccessful. The surveillance, including the secret recordings, was unlawful. The employer had no justified reason for the surveillance. The probative value of the certificates of incapacity for work was not shaken by the fact that they came from different doctors, nor by a change in the clinical picture or because a slipped disc had initially been treated by a general practitioner. The amount of damages for pain and suffering assumed by the Regional Labour Court was not subject to revision. It was not necessary to decide how video recordings were to be assessed if there was a justified reason for monitoring.