In principle, an employer may not monitor his employees either by hidden cameras or by listening in on telephone calls. By doing so, the employer would violate the employee's constitutionally protected personal rights. Before introducing and using technical equipment designed to monitor the behavior or performance of employees, the employer is legally required to obtain the consent of the works council (Section 87 (1) No. 6 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG)).
On March 27, 2003 (case reference 2 AZR 51/02), the Federal Labor Court ruled that an employer may use secretly made video recordings as evidence in court to justify an extraordinary dismissal, even if the works council was not involved before the cameras were installed.
The decision was based on the following facts:
An employee worked in a beverage store. The owner noticed a constant increase in inventory discrepancies, but was unable to find the cause. Since there were no other apparent reasons for the shortages, the employer suspected that his employee was embezzling. He therefore had two hidden video cameras installed in the crate and empties area where the employee worked. The evaluation of several video recordings confirmed the employer's strong suspicion that the employee had embezzled funds. The employer presented the video recordings to the works council and received its consent to dismiss the employee without notice. The employee filed a wrongful dismissal suit, arguing that the secret video surveillance constituted an infringement of her right to privacy and that the recordings could therefore not be used as evidence. Furthermore, the recordings were also inadmissible as evidence because the works council had not been involved before the cameras were installed. The violation of the works council's right of co-determination also led to the evidence being inadmissible.
The Federal Labor Court rejected the employee's complaint in the final instance and declared the termination without notice to be effective.
The Federal Labor Court is of the opinion that although secret surveillance with video cameras constitutes an infringement of the right of personality protected by Article 2 of the German Basic Law, this infringement is permissible if there is a situation of self-defense. Such a situation is to be assumed if there is sufficient suspicion of a criminal offense that cannot be clarified or only with difficulty by other means that are less restrictive of the employee's right of personality. The fact that the works council was not involved before the cameras were installed may constitute a violation of the Works Constitution Act, but it does not mean that the video recordings cannot be used as evidence, especially since the works council had agreed to the termination.
If there is no other way to solve cases of theft, embezzlement, etc., the employer is entitled to install hidden surveillance cameras and can also use the information obtained from them in court.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.