The Fairy Tale of Secret Video Recordings’ Inadmissibility
> May 2017

There is an almost mantra-like repetition – mostly by employees – in labour disputes that secret video recordings made by employers automatically are inadmissible. The German Federal Labour Court (BAG) made a well-balanced and clear decision on 20 October 2016 (reference 2 AZR395/15) and in doing so dismissed this basic perception.

In a company’s spare part storage, an employer had secretly installed video cameras following substantial inventory discrepancies. To begin with, it was tried to improve the situation by setting up warning signs at the entrance to the spare part storage. This had no impact on the situation so all employees were banned from entering the spare part storage. Only the warehouse staff was allowed to enter the spare part storage. When even this step didn’t improve the situation, the employer installed cameras without involving the works council while only informing the warehouse staff.
 
The plaintiff, a mechanic, was dismissed when the video recordings on the one hand showed that he had entered the spare part storage although he was not permitted to do so, and on the other hand that he had put spare parts into his pockets.

The local labour court and the regional labour court (LAG) allowed the plaintiff to proceed. The BAG annulled LAG’s decision.

Firstly, BAG stated that there is no rule in German civil law regarding inadmissibility. Following this statement, BAG pointed out that there is no principle that rules that illegally acquired knowledge or evidence could not be used by the court even if acquiring the knowledge or evidence involved violation of data protection regulations. Even if failure to involve works council violates works constitutional matters, does this not lead to inadmissibility if the measures according to civil proceeding standards would not result in inadmissibility. The concrete way of assessing information and evidence must subsequently turn out to be justified.

The concern about a functioning administration of justice and the use of evidence must balance encroaching an employee’s general personal rights. BAG stated that the sheer interest in securing evidence would not be enough to justify encroaching general personal rights.  

However, BAG was of the opinion that secret video recording was justified because earlier measures (warning signs and ban of entering the spare part storage) did not succeed. BAG even found a “simple” suspicion – in this case against a group of mechanics - would justify the means.

Conclusion: Video recording - even secretly done – is possible in the event of simple suspicion of grave professional misconduct such as theft if lenient measures adopted by the employer haven’t improved the situation. This even holds true if data protection and works constitutional regulations haven’t been complied with. Results from video recordings may be used as evidence in court.