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CCTV monitoring in the workplace in Germany

March 2014

There have been some high profile cases involving the use of CCTV in Germany in recent years with a number of discount supermarket and drugstore chains admitting that they unlawfully monitored employees using CCTV, not only on business premises but also in staffrooms and bathrooms. The employers concerned had a variety of motives for their activities from prevention of criminal offences to manipulation of works council elections and monitoring of work performance.

These cases, which attracted a great deal of negative publicity, have made the legitimacy of CCTV in the workplace a contentious issue under German employment law.  The German federal government has looked at consolidating the law in this area and presented a draft law regarding new employee data protection rules in 2009. It provided, in principle, for prohibition of concealed surveillance and a revision of the rules governing overt video surveillance. Overt video surveillance would be lawful for specific purposes (e.g. to protect property).  As many different parties have lobbied against this draft law, it remains unclear whether and in what form it will come into force.

data protection

The coalition agreement between the CDU/CSU and SPD dated December 16, 2013, plans clarifying the situation in the event that the proposed reform of European data protection law does not happen.  For now though, the government is holding off legislating on data protection.  This means that, despite the various monitoring scandals at well-known companies, the old framework of rules on use of CCTV in the workplace continues to apply.  This differentiates between video surveillance in public and private areas and between covert and overt video surveillance.

Video surveillance in public areas is permitted pursuant to section 6b German Federal Data Protection Act, in so far as it is necessary to pursue rightful interests for precisely defined purposes and if there are no indications that the data subjects' legitimate interests prevail. In an employment context, it must, therefore, be determined whether the employer's interests take priority over the employee's personal rights in each individual case.  In the majority of cases, personal rights will take precedence as it is not usually possible for employees to opt out of surveillance without compromising their ability to do their job so CCTV will not be permitted.  In certain instances, however, the employer's interests may take priority, e.g. video surveillance for the protection of the employee or in the event of a suspicion of a crime committed by the employee. Any video surveillance in public areas always requires a visible notification of the video surveillance – covert surveillance is not permitted in public areas.

Overt video surveillance in non-public areas (e.g. offices, factory premises, storage rooms or staff rooms) is not explicitly regulated by German law so we need to look at general legal provisions dealing with data collection, processing and use for employment-related purposes to evaluate whether video surveillance of employees in non-public areas is permitted. Personal data of an employee may be collected, processed or used for employment related purposes where necessary for hiring decisions or, after hiring, for carrying out or terminating the employment contract pursuant to section 32 para. 1 German Federal Data Protection Act. The question of whether overt video surveillance can be considered necessary for these purposes again needs to be determined by evaluating the more valuable legal interest in each individual case. It needs to be decided whether, as an exception, the employer's interests take priority over the employee’s personal rights. Overt video surveillance might be permitted if legitimate interests are pursued, e.g. protection of products or assets, and the surveillance is limited rather than constant. Permanent observation of employees in the workplace without a concrete suspicion of a criminal offence is never permitted as it is considered to be a serious breach of personal rights.

Security noticeCovert video surveillance of employees in the workplace is only permitted to a very limited extent. Pursuant to the jurisdiction of the German Federal Labor Court, covert video surveillance of an employee is allowed: if a criminal offence or another massive breach of regulations by the employee to the detriment of the employer is specifically suspected; all less drastic methods of investigating the suspicion have been exhausted; the covert video surveillance is the only means remaining to resolve the matter; and the surveillance is not disproportionate. In such cases, the surveillance needs to be concentrated on the suspect employee and the places where the criminal offence or other breach of regulations may have taken place, e. g. cash desk.

Use of all CCTV, whether covert or not, is prohibited in staffrooms, bathrooms and changing rooms as surveillance in those areas is held to infringe the personal rights of both the suspect employee and other employees.

If an employer illegally installs and uses CCTV, the video recordings might not be admissible in court proceedings. In addition, the employer might face criminal prosecution and administrative fines as well as damages claims from the employee illegally filmed.

If you have any questions on this article or would like to propose a subject to be addressed by the Global Data Hub please contact us.

Warning sign for use of CCTV cameras
Dr Franziska Hügel

Dr Franziska Hügel      

Franziska looks at the German legal framework governing the use of CCTV in the workplace

"If an employer illegally installs and uses CCTV, the video recordings might not be admissable in court proceedings. In addition, the employer might face criminal prosecution and administrative fines as well as damages claims from the employee illegally filmed. "