Surveillance by a detective, including secret image recordings, is only permitted if there is concrete suspicion. BAG 19.02.2015 - 8 AZR 1007/13

Both the commissioning of a detective and the secret recording of images to monitor an employee must be based on a suspicion based on concrete facts. It is not sufficient that the certificate of incapacity for work comes from different doctors, that the clinical picture changes or that a slipped disc was initially treated by a general practitioner. If the requirements for such a suspicion are not met, the monitoring constitutes an unlawful violation of the general right of personality, which can justify compensation for pain and suffering.

The plaintiff, who had been employed by the defendant as a secretary since May 2011, was unable to work from December 27 due to bronchial illnesses. Until February 28, 2012, the plaintiff submitted six certificates of incapacity for work from two different specialists one after the other. The first four certificates were from a specialist in general medicine, the last two were from an orthopaedic specialist from January 31, 2012. The last reported slipped disc caused the defendant to have doubts about the plaintiff's inability to work, whereupon it commissioned a detective to determine the plaintiff's ability to work. The detective monitored the plaintiff on a total of 4 days in the period from mid to late February. The detective observed the plaintiff's house, the plaintiff with her husband and dog in front of the house, as well as the plaintiff's visit to a laundromat. The observation report submitted to the defendant contained eleven images, nine of which were from video sequences. The plaintiff considers the surveillance, including the video recordings, to be unlawful and is claiming damages for pain and suffering in the amount of EUR 10,500.00. She argues that she suffered considerable psychological impairment requiring medical treatment.

The Regional Labor Court had upheld the claim in the amount of 1,000.00 euros. The BAG rejected the appeals of both parties. The BAG justified its decision by stating that there were no concrete facts that would justify surveillance based on suspicion, including image recording. Neither the certification of different doctors, nor the change in the clinical picture, nor the initial treatment of a herniated disc by a general practitioner were concrete facts that would justify a suspicion of faking incapacity for work. The assignment to the detective to observe the plaintiff therefore violated the plaintiff's general right of personality. The BAG considers a monetary compensation claim of EUR 1,000.00 to be appropriate. Furthermore, the BAG emphasized that it was not necessary to decide how the video recordings are to be assessed if there is justified surveillance.

Notwithstanding this decision, surveillance with the help of a detective, including image recordings, may be permissible under certain circumstances. However, this requires a suspicion based on concrete facts. If this suspicion exists, according to BAG 26.09.2013 - 8 AZR 1026/12, the employee may even be required to reimburse the costs of the detective. For this to be the case, however, it must also be proven that the employee has culpably breached their duties and that it was necessary to hire the detective in order to prevent further damage.

Date: 19. Feb 2015