DE: German BAG Rules Chance Discoveries in the Case of Hidden Video Surveillance Can be Used in Court

The German Federal Labor Court (BAG) has ruled that there is no strict prohibition on the use of evidence in the event of chance discoveries obtained through hidden video surveillance. Approval of the evidence must be examined on a case by case basis. In the present case, the German Federal Labor Court deemed it permissible to use such discoveries for the termination of employment without notice.

In one company, there were inventory losses in the area of cigarettes and non-food products. Two employees were concretely suspected in regards to this matter. The branch itself already had open video surveillance, but these cameras were unable to help clarify the situation. In consultation with the Works Council, hidden video surveillance was carried out in regard to the two employees suspected in causing the inventory losses. By coincidence, the recordings showed how a different employee ran a sample bottle over the scanner and illicitly removed money from the cash register. The employer dismissed the employee without notice. During the hearing, inter alia, it was questionable whether the recording could be used to justify the dismissal as the measure originally concerned two other employees.

The court noted that matters of fact are of great importance in the hearing, and that the matters of fact are not to be taken into account only if the basic right to informational self-determination has been violated. In this context, the German Federal Labor Court stated that the provisions of Section 32 para. 1 sent. 2 of the German Federal Data Protection Act (BDSG) are "unsuccessful" and made it clear that, although the circle of suspects should be limited as much as possible, it is not absolutely necessary that a monitoring measure be carried out in such a way that only such persons are recorded, for whom a concrete suspicion already exists.

Therefore, it was permissible to use the recordings and termination without cause was permitted.

Data protection officers, employers, works councils and attorneys should be aware of this decision because this decision also contains detailed explanations regarding the prerequisites for hidden video surveillance in Germany as well as the possibility to evaluate the information obtained. There is one reservation, however, and the German Federal Labor Court expressly states this: Hidden video surveillance is always a means of last resort.

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