Employment Law

Is secret video surveillance in the workplace legal?

The German Employment Appeals Tribunal has set the record straight in a judgment on the use of secret video surveillance in the workplace, deciding that employee personality rights have precedence.

Is secret video surveillance in the workplace legal? © eschwarzer-Fotolia

Is secret video surveillance in the workplace legal? © eschwarzer-Fotolia

Video surveillance in the workplace

The case concerned a supermarket. After conducting an audit, the operator of the supermarket established that there was a deficit of around 7,000 euros. The owner completed a stock take and examined the outgoing goods, but found no indications of irregularities in operation.

The supermarket owner therefore decided to install secret video surveillance cameras near the cash desk. The cameras filmed a cashier removing money from the till several times and placing it in her pocket.

The employer concluded that the cashier was guilty of stealing and terminated the employment contract with and without notice. However, the cashier sued for wrongful dismissal.

Wrongful dismissal

Germany’s Employment Appeals Tribunal determined that the employer was not entitled on the basis of the knowledge acquired from the video footage to dismiss the cashier even with notice (judgment from 21.11.2013, case ref. 2 AZR 797/11). The judgment reverses a decision of a lower tribunal which had considered the dismissal legal.

Sufficient cause

For the use of secret video surveillance in the workplace to be legal, employers must first exhaust all other investigative possibilities in order to try to clarify the facts, the tribunal stated. Failure to do so leads to the evidence collected through secret surveillance being inadmissible.

According to the tribunal, in this particular case, the employer had insufficiently demonstrated that concrete steps had been taken to prevent theft in general of products from the storage room. In addition, the court determined that the employer could have undertaken random till checks before installing the cameras.

The case was remitted to the Regional Employment Tribunal for judgment on the facts

Criminal acts in the workplace justify dismissal

Employees who conduct criminal acts in the workplace can usually expect to be dismissed without notice. This is the case unless the evidence on which the dismissal is based is ruled inadmissible in court, as occurred in this case.

Requirements for secret video surveillance

According to the consistent case law of Germany’s Employment Appeals Tribunal, secret video surveillance in the workplace is permitted only under strict conditions.

Firstly, the employer must have adequate grounds for suspicion in relation to a certain employee’s conduct. Secondly, there must be no other possibility for clarifying the situation. Finally, the video surveillance must not be disproportional.

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Nicola Simon ist Fachanwältin für Arbeitsrecht. Sie hat sich sowohl auf die Beratung der Arbeitnehmer, als auch der Arbeitgeber und Betriebsräte spezialisiert. Seit 2008 ist sie Referentin beim Medien- und Gründerzentrum.

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