Covert Surveillance of Employees Only Permissible in Exceptional Cases

An employer who assigns a private investigator to monitor an employee due to suspicion of feigned incapacity for work acts unlawfully if their suspicion is not based on concrete facts. The same applies to secretly produced images. Such an unlawful violation of the general right to personality can establish a claim for monetary compensation for non-pecuniary damage.

The plaintiff had been employed by the defendant as an executive secretary since May 2011. From December 27, 2011, she was incapacitated for work due to illness, initially with bronchial conditions. For the period until February 28, 2012, she successively submitted six certificates of incapacity for work, first four from a general practitioner, then, from January 31, 2012, two from an orthopedic specialist. The defendant's managing director doubted the herniated disc reported most recently by phone and commissioned a private investigator to observe the plaintiff. This observation took place over four days from mid to late February 2012. Among other things, the plaintiff's house, she and her husband with their dog in front of the house, and the plaintiff's visit to a laundromat were observed. Video recordings were also made during this time. The surveillance report submitted to the employer contained eleven images, nine of which were from video sequences. The plaintiff considers the commissioning of the surveillance, including the video recordings, to be unlawful and demands monetary compensation for non-pecuniary damage, the amount of which she has left to the discretion of the court. She considers €10,500 to be appropriate. The plaintiff allegedly suffered significant psychological impairments requiring medical treatment.

The Regional Labor Court granted the claim for €1,000.00. The appeals of both parties were unsuccessful before the Eighth Senate of the Federal Labor Court. The surveillance, including the covert recordings, was unlawful. The employer had no legitimate reason for surveillance. The evidentiary value of the certificates of incapacity for work was not undermined by the fact that they originated from different doctors, nor by a change in the clinical picture, nor because a herniated disc had initially been treated by a general practitioner. The amount of monetary compensation for non-pecuniary damage determined by the Regional Labor Court could not be corrected under appellate law. It was not necessary to decide how video recordings should be assessed when there is a legitimate reason for surveillance.