Unlawful Video Recordings Considered Admissible Evidence at German Federal Labor Court

Video surveillance in the workplace is a constantly relevant issue for both companies and employees, but where there is often considerable uncertainty on both sides. That is why labor courts regularly deal with this topic. Most recently, the German Federal Labor Court had the opportunity to address a specific aspect of this issue.

In the following, we will take a closer look at this decision.

The Federal Labor Court specifically examined the question of whether recordings from video surveillance, which are inadmissible from a data protection perspective, can be used as evidence in labor law proceedings, or whether such an unlawful data collection must always result in a prohibition of the use of evidence.

In their ruling of June 29, 2023 (Case No. 2 AZR 296/22) the judges at the Federal Labor Court answered this question by stating that an automatic prohibition of the use of evidence does not follow such an unlawful collection. The Court thus turned against the decisions of the lower courts, which derived an exclusionary rule from the unlawfully recorded data.

The decision was based on the following facts:

The parties were in dispute over the lawfulness of an employer’s extraordinary termination, which the defendant based on the plaintiff’s suspected fraudulent manipulation of working hours.  For this purpose, the defendant relied on the one hand on the data of the time recording system used in its company and on the other hand on the evaluation of video recordings from the entrance to the factory premises. The recordings showed that the plaintiff initially entered the defendant’s premises on the day in question, but left again before the start of his shift, although this was not documented in the time recording system. The recordings originated from a so-called “open video surveillance”, indicated by open signs in the company premises.  The system was known to the employees.

The plaintiff objected to the introduction of the video recording as evidence in the trial, arguing that they were created in violation of data protection regulations. For example, the signs had indicated that the recordings would only be stored for 96 hours, although they had in fact been stored for much longer.

In addition, there is a works agreement in the defendant’s company according to which the video recordings may not be used for the evaluation of personal data. The plaintiff argued that these violations should necessarily lead to a prohibition of the use of evidence, and therefore the recordings should not be considered as evidence.

Unlike the previous instances, however, the Federal Labor Court did not follow this line of reasoning and consequently overturned the decision of the Lower Saxony Regional Labor Court and referred the case back to it. In the end, the Federal Labor Court was even able to leave open the question of whether the video recordings actually violated data protection regulations, because even if they did, this would not necessarily result in a comprehensive ban on the use of those videos as evidence. In any case, neither the German Federal Data Protection Act nor the European General Data Protection Regulation (GDPR) precludes the use of the plaintiff’s personal data by the labor courts. This applies especially in cases like this one, where intentional misconduct is at issue and open video surveillance of a publicly accessible area is involved.

In this respect, the Federal Labor Court clearly drew parallels to the balancing of interests in criminal proceedings, according to which an exclusionary rule follows from unlawfully obtained evidence only if the balancing of interests shows a predominance of the rights of the affected person. Here however, the Federal Labor Court found no such overriding interest of the plaintiff. In the case of the plaintiff’s intentional misconduct, the defendant’s interest in clarifying the facts outweighed any data protection interests of the plaintiff. The situation could be different if the unlawful surveillance were to be classified as a serious violation of fundamental rights, but this was not the case here, in particular due to the open surveillance. Furthermore, no exclusionary rule could be derived from the works agreement or its violation, as it does not have binding force for the court.

With this decision, the Federal Labor Court continues its tendency to be favorable towards the admissibility of evidence and once again takes the position that data protection shall not lead to protection of willful misconduct or criminal behavior against legal sanctions. As long as there is no particularly serious violation of fundamental rights due to the specific circumstances of the individual case, evidence obtained in violation of data protection regulations may be used in court proceedings. From an employer’s perspective, this approach is generally welcomed. However, it should not be concluded that compliance with data protection regulations regarding surveillance measures can be ignored in the future. Although not every violation of data protection law leads to an exclusionary rule, it is still a sanctionable violation that can result in significant fines under the GDPR.

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