Germany: No evaluation prohibition for older recordings from open video surveillance

The employee worked in a tobacco and newspaper shop in which the employer had installed an open video surveillance system. With these video records, the employer wanted to protect his property and belongings from criminal acts committed by both customers and his own employees.

In the 3rd quarter of 2016 the employer discovered a deficiency of tobacco products in his shop. When evaluating the video material in August 2016, the employer discovered that an employee did not put money into the cash box as she was supposed to, but, presumably, into her own pocket, on two days in February 2016. Following this detection, the employer extraordinarily terminated her employment for cause without notice.

Subsequently, she filed an action against the employer for protection against unfair dismissal. The regional labor court ruled that the evaluation of the video material is subject to a prohibition of evaluation because the employer was obliged to delete the video material without delay. At least the employer was obliged to delete the video material definitely before actually sighting on 1 August 2016.

The German Federal Labor Court has quashed this judgment and remanded the case to the regional labor court. The highest German labor court ruled that, in case of a lawful open video surveillance, processing and evaluation of the video material was admissible and therefore did not violate the employee’s general right of personality.

The employer was not obliged to immediately evaluate the video material. He was entitled to wait with the evaluation until there was a legitimate occasion to do so. If the open video surveillance was lawful, the regulations of the new Federal Data Protection Act (BDSG) would not oppose with the court use of the video material.