Video surveillance in the workplace

Are employers allowed to monitor their employees seamlessly, permanently and in detail using video cameras and what are the limits of video surveillance?

The topic of video surveillance in the workplace is a long-running topic in employment law advice and always leads to discussions.

Proponents argue with the advantages of preserving evidence or detecting crimes early. On the other hand, there is the fear of violating the privacy or even intimacy of employees.

However, the recurring question is: When are employers allowed to monitor employees using video cameras and what are the limits of video surveillance?

With a recent decision (Resolution of March 9, 2021 - 1 BV 10/20, juris) has happened Hamm Labor Court dealt with the data protection proportionality of video surveillance in the interior of a logistics center.

In the underlying legal dispute, the employer, which operates a logistics center for goods from the “dry food” and “frozen” range, wanted a video system to monitor, among other things, a video system to prevent crimes such as theft and damage to property, as well as to investigate and prosecute crimes. “critical product areas” such as confectionery, spirits with a comparatively high value, drugstore items or a range of boiled sausages.

The employer argued in court that these “critical product groups” just mentioned should be monitored via video because they can be carried unnoticed in clothing. These product areas are located in 17 of 46 shelf aisles of the dry goods range. 62 cameras are planned in this area, which will be installed with a mutual view of each other in order to avoid blind spots.

According to the employer's information, in the period from February 2018 to June 2019 there were thefts in the spirits area with a value of over EUR 50,000.00 and in the drugstore items area there were thefts with a value of EUR 8,000.00. The employer therefore believes that the installation of the cameras is necessary and appropriate.

The Hamm Labor Court did not share the employer's argument and considered the video surveillance in this specific case ineffective classified. In particular, the labor court came to the conclusion that the video surveillance was not proportionate.

From his Purpose From this point of view, video surveillance is intended to offer appropriate protection for the property of the employer and its customers, which is fundamentally worth protecting legally. In order to achieve this purpose, the Chamber believes that a video surveillance camera is a fundamentally suitable means of deterring employees from committing crimes and identifying possible perpetrators.

However, according to the Hamm Labor Court, video surveillance – as planned by the employer in the present case – is not appropriate.

According to the case law of the BAG, a regulation is appropriate if it appears to be proportionate in the narrower sense. In order to determine this, an overall assessment of the intensity of the intervention and the weight of the reasons justifying it is required. This consideration cannot be made in the abstract. Neither the property protected by Article 14 Paragraph 1 GG nor the personal rights guaranteed by Article 2 Paragraph 1 GG take precedence; Rather, the overall circumstances are decisive (cf. BAG, decision of June 29, 2004 - 1 ABR 21/03).

To justify why video surveillance was not appropriate, the Hamm Labor Court stated that the employer had not adequately demonstrated that there was an increased risk of theft for all goods stored in the area to be monitored.

The labor court states literally as follows (see paragraph 23):

“If one assumes - based on the employer's statement - that the spirits sector is one of the "critical" and therefore prone to theft goods and that even a few thefts cause disproportionately high damage, then it cannot be inferred from the employer's statements that there is any at all significant damage occurs in the confectionery and boiled sausage sectors. There are no statements regarding any damage caused or feared here; have not been shown in terms of their amount.”

 In addition, video surveillance should be carried out on a full-time basis and without any reason, with the result that the employees who move in this area are under constant surveillance. They need to feel controlled with every move they make. If designed independently of suspicion, full-scale surveillance represents an inappropriate interference with the personal rights of employees in accordance with Article 2 Paragraph 1 and 1 Paragraph 1 of the Basic Law.

 Conclusion:

Overall, the decision of the Hamm Labor Court illustrates that video surveillance in the workplace is one of the most intrusive forms of employee surveillance. For these reasons, very high requirements must regularly be placed on the permissibility of using video cameras in the workplace. Therefore, before introducing video surveillance in the workplace, there should be a careful examination of the legal situation and - as the case decided by the Hamm Labor Court shows - above all, documentation that can withstand the burden of presentation and proof in court

Henning Schultze, lawyer and specialist in labor law