In principle, there is no prohibition on the use of recordings from open video surveillance in proceedings to protect against dismissal if they are intended to prove that the employee's conduct was intentionally in breach of the contract. This also applies if the employer's surveillance measure does not fully comply with the requirements of data protection law.
The plaintiff was last employed by the defendant as a team spokesman in the foundry. The defendant accuses him, among other things, of not having worked a so-called overtime shift on June 2, 2018, with the intention of nevertheless being paid for it. According to his own submission, the plaintiff initially entered the plant premises on this day. However, according to the defendant's submission, the evaluation of the recordings made by a video camera at a gate to the plant premises, which was identified by a pictogram and which could not be overlooked in any other way, showed that the plaintiff left the plant again before the start of the shift. The defendant terminated the employment relationship of the parties for cause, alternatively for cause.
In his action against this, the plaintiff claimed, among other things, that he had worked on June 2, 2018. The findings from the video surveillance are subject to a prohibition on the use of facts and evidence and may therefore not be taken into account in the dismissal protection proceedings.
The lower courts allowed the action. The defendant's appeal against this decision was successful before the Second Senate of the Federal Labor Court with the exception of an application for an interim report. It led to the case being referred back to the Regional Labor Court. The latter not only had to take as a basis the defendant's claim that the plaintiff left the plant premises before the start of the overtime shift, but also had to examine the relevant sequence of images from the video surveillance at the gate to the plant premises. This follows from the relevant provisions of Union law and national procedural and constitutional law. It is irrelevant whether the surveillance complied in every respect with the requirements of the Federal Data Protection Act or the General Data Protection Regulation (GDPR). Even if this were not the case, processing of the plaintiff's personal data in question by the labor courts would not be precluded under the GDPR. This applies in any case if, as here, the data collection is carried out openly and deliberate conduct by the employee in breach of the contract is at issue. In such a case, it is basically irrelevant how long the employer waited to inspect the image material for the first time and held it until then. The Senate was able to leave open the question of whether, as an exception for reasons of general prevention, a prohibition of exploitation with regard to intentional breaches of duty could be considered if the open surveillance measure represents a serious violation of fundamental rights. This was not the case here.
Federal Labor Court, judgment of June 29, 2023 - 2 AZR 296/22 -
Previous instance: Lower Saxony Regional Labor Court, judgment of July 6, 2022 - 8 Sa 1149/20 -
Source: Press release of the Federal Labor Court No. 31/23 of 29.06.2023
