BAG ruling: No prohibition of utilization in dismissal protection proceedings with regard to recordings from open video surveillance

The ruling of the Federal Labor Court was based on a dismissal protection case concerning the validity of an extraordinary dismissal without notice, or alternatively an ordinary dismissal. The employee had claimed to the employer that he had performed his work on the day in question and had entered the factory premises. However, the evaluation of the recordings from a recognizable video camera at a gate on the factory premises marked with a pictogram revealed that the employee had already left the premises before the start of his shift. For this reason, the employer terminated the employment relationship with the employee.

The proceedings were referred back to the Lower Saxony Regional Labor Court for a new decision by the Federal Labor Court, but with the note that the image sequence from the video camera may also have to be used as the basis for the decision. In the opinion of the Federal Labor Court, it is irrelevant in this context whether the surveillance complies in every respect with the legal requirements, in particular the Federal Data Protection Act or the GDPR. Even if this is not the case, this does not per se prevent the recordings and data contained therein from being processed. In the opinion of the BAG, this applies in any case if the data is collected openly and the employee's conduct is intentionally in breach of contract. However, the Federal Labor Court left open the question of whether an exploitation ban also exists if the open surveillance measure constitutes a serious violation of fundamental rights.