Termination on grounds of conduct

Procedural admissibility of video recordings (German Federal Labor Court, decision dated September 22, 2016 – 2 AZR 848/15)

The Federal Labor Court was called upon to decide on the admissibility of concealed video monitoring. The extraordinary termination subject to the dispute involved a cashier who had taken EUR 3.25 out of the till after manipulating a bottle deposit receipt.

After the employer discovered the financial discrepancies and control measures (e.g. searching employees’ bags) were not successful, with approval of the works council, the employer carried out secret video monitoring of the cash register area for two weeks. The accusation of wrongdoing was aimed at two co-workers of the plaintiff, who were then found guilty based on analysis of video recordings. The employer terminated the employment relationship extraordinarily. The wrongful termination suit was unsuccessful in the second instance. The plaintiff did not deny the accusation, but she argued that the evidence was inadmissible.

The Federal Labor Court dismissed the appeal. The termination was lawful, the video recordings were admissible.

For the first time, the Federal Labor Court expands the prohibition on the admissibility of evidence to a so-called “prohibition on factual submissions”. It is therefore no longer to the employer’s advantage if the employee does not deny his conduct in the face of the recording; rather, the conditions for admissibility are to be examined. The intervention into employee rights by means of concealed video monitoring is admissible if

  1. there is concrete suspicion of a punishable offense or other severe misconduct on the part of the employee,
  2. less invasive means of resolving the suspicion have been exhausted with no result, which means that concealed video monitoring is practically the only remaining recourse and
  3. the recording is not disproportionate on the whole.

If these conditions have been met, the processing and use of personal data serve the purposes of the employment relationship or its termination and are therefore covered by the permissive rule sec. 32 para. 1 Federal Data Protection Act (BDSG). In addition, as the Federal Labor Court clarifies for the first time, no additional statutory permission (sec. 6b para. 3 BDSG) is necessary.

Additional key factors in the decision: If the use is permissible according to the above principles, co-determination rights of the works council (sec. 87 para. 1 no. 6, 77 Works Constitution Act – BetrVG) cannot be violated already due to their protection purpose. The Federal Labor Court also affirms compliance with the two-week period for termination pursuant to sec. 626 para. 2 Civil Code (BGB). In the case decided, the analysis of two weeks of recording material was allowed to take a total of three weeks without negative consequences on the two-week period. As for the reasons of termination, which are required to be communicated to the works council in a hearing procedure (sec 102 para. 1 BetrVG), the relevant circumstances for evidence admissibility were not included.

Practical recommendations:

The decision of the Federal Labor Court immediately answers several questions regarding the procedural admissibility of video recordings that were previously either unresolved or only broadly addressed in case law. The Federal Labor Court confirms the standard requirements and that only the requirements of one statutory permission need to be met (sec. 32 BDSG). Even a breach of the co-determination rights of the works council should then be automatically excluded if the works council is not aware of and has not been notified of the recording. Of course, informing the works council is often useful in the interest of a cooperative trust relationship among the company parties. In addition, the Federal Labor Court expands the prohibition on the admissibility of evidence to a prohibition on factual submissions. Employees whose misconduct was documented and therefore essentially proven, often did not deny their misconduct or claimed ignorance with regard to their procedural duty to tell the truth. Courts have often rejected this denial as inadmissible. In consequence of this latest decision by the Federal Labor Court, employees do not have to state conduct or misconduct. It is sufficient if employees argue that the evidence is inadmissible. That is why employers, now more than ever, must focus on proving the requirements for the inadmissibility of evidence and meticulously document them. Peripherally, the Federal Labor Court also took up the matter of an extremely relevant question in practice concerning how long the evaluation of the recorded material is allowed to take. The time sequence from the video recording right down to the decision to terminate must be precisely planned with regard to the two-week period for declaring termination of sec. 626 para. 2 BGB: How much time does the employer have to evaluate the comprehensive material? Does he have to involve several people in order to complete the investigations as quickly as possible? Does he even have to conduct the evaluation in phases and analyze a part of the material, while additional recordings are being made? This continues to be a case-by-case decision. However, the decision of the Federal Labor Court does provide a guideline here: The evaluation of material recorded over two weeks is even allowed to take three weeks and may exceed the actual time of the recordings. After evaluation of the material, the employee hearing and the termination decision must be carried out as quickly as possible.

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Tags: #Labour law, #Newsletter Employment Law 2/17

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