The obligation to record time has changed fundamentally as a result of the ECJ ruling. However, even if working time now has to be recorded, companies want to do this without the classic time card in the digital age. There are plenty of more modern options for electronic time recording. But not all methods are admissible, or at least the employee’s express consent is required. This is also shown by a decision of the Berlin Labor Court (Arbeitsgericht, ArbG) of October 16, 2019 (file number: 29 Ca 5451/19) – appealed to the Regional Labor Court Berlin-Brandenburg (Landesarbeitsgericht, LAG), file number: 10 Sa 2130/19).
In the specific case, the court decided that the recording of working time by a fingerprint system is not required within the meaning of the Federal Data Protection Act and consequently is not permissible without the express consent of the employee.
In the underlying case, the employer had introduced a new system for recording working time by means of a fingerprint. Subsequently, they informed the employees about this by circular e-mail. With the implemented system, the employee logged on or off by comparing their fingerprint with the data stored in the system. For this purpose, so-called minutiae, i. e. individual, non-inheritable finger line branches, are first extracted from the employee’s fingerprint using a special algorithm and stored in the time recording system. This dataset was then compared with the employee’s fingerprint each time they logged on or off. The fingerprint itself was not stored and could not be generated from the stored minutiae either.
However, one employee refused to use this time recording system. The ArbG Berlin found in his favor. The court stated that from the point of view of data protection law, the minutiae data were biometric data in accordance with the General Data Protection Regulation (GDPR) and personal data that was particularly worthy of protection. The processing of biometric data and thus also of minutiae data records is fundamentally prohibited under the GDPR, the court further formulated.
However, it also left a back door open for time recording by means of fingerprint. In exceptional cases this could be permissible, for example, if the employee gives their express consent or if a collective agreement is in place. Here, neither of these was the case. In addition, the employer was only allowed to process biometric data if this was necessary for the establishment, performance or termination of the employment relationship within the meaning of the Federal Data Protection Act.
The Court went on to say that the collection and use of biometric data was only permissible under strict conditions: The biometric procedure had to be permitted for the purposes of the employment relationship, it must not unreasonably restrict the employees’ personal rights. The ArbG Berlin decided that these requirements were not met here.
According to this ruling, time recording by means of fingerprint is not generally excluded, but it should be carefully pondered and examined for data protection concerns. In addition, an effective consent of the employees must be at hand.
