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| 2 minutes read

Can video surveillance be used by employers in Germany as evidence to support dismissal? A recent decision suggests it might.

A recent ruling of the German Federal Labour Court (Bundesarbeitsgericht) (BAG) on 29 June 2023, emphasizes the need for transparency requirements for video surveillance but at the same time strengthens companies’ right to use the recordings of open video surveillance as evidence to support a summary dismissal.

The courts of lower instance have confirmed the action of the employee against the dismissal, claiming that the video surveillance was neither useful nor necessary for determining whether employees are in fact working and thereby confirmed that the use of video surveillance recordings to justify a summary dismissal shall be prohibited.

Find below the key takeaways based on the press release from the court while the full text of the ruling is not yet publicly available.

Key takeaways from the court decision

The BAG ruled that, in principle, there is no prohibition on using recordings from open video surveillance to prove an intentional breach of contract by the employee.

According to the BAG, the prerequisite for the use of the recording as evidence is that the video surveillance was conducted transparently. On this basis, the BAG distinguishes two constellations of video surveillances:

  • If the video surveillance fulfils transparency requirements and shows an intentional breach of contract by the employee, the use of the recording shall be admissible. The video recording can then also be utilised if the employer's surveillance measure did not comply in every respect with the requirements of data protection law (which the BAG did not further investigate). In this case, the duration of storage of the video surveillance recordings in compliance with data protection requirements had no impact on its usability as evidence. According to the BAG, in this case, that the employer initially stored the video material before viewing it did not impact its use as evidence. In contrast, a previous court ruled that  exceeding a (self-imposed) storage period precludes the use of the recordings.
  • However, the BAG expressly stated that it did not rule on the scenario in which the surveillance measure constitutes a serious violation of fundamental rights. It remains to be seen whether in these scenarios there may be limits on using video footage as evidence.

Consequences for companies

In general, companies should carefully assess the extent to which video surveillance is necessary and for what purposes it may be used. In general, regular video surveillance should be set-up in accordance with data protection requirements and in a transparent manner. Moreover, it should be noted that in the past the BAG has also drawn limits to the use of recordings from open video surveillance to justify a (summary) dismissal. Accordingly, open video surveillance can be inadmissible if it leads to continuous monitoring and creates considerable pressure on the employee to adapt and perform without there being any suspicion of a serious breach of duty based on concrete facts.

However, it should be concluded that that recordings from open video surveillance may be used as evidence for intentional breaches of employment contracts. In this context, employers should be prepared for legal challenges, but the BAG ruling will likely support the employer’s position.