In relation thereto, the German Federal Labor Court has recently ruled a decision according to which the recordings made by video surveillance of employees may be used for termination of employment contract, regardless of employer’s omission to previously notice employees thereon in accordance with the provisions of Article 13 of the GDPR (“the Ruling”).
Namely, according to Article 13 of the GDPR, where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject, among other, with information regarding the purpose of processing for which the personal data are intended, as well as about legal basis for the processing concerned.
Reasons of the Ruling
In this specific case, the controller cancelled employee’s contract because the latter stated he had been at the workplace at the time when the controller established through video surveillance that the employee had actually been outside the office.
In the procedure related to the subject dismissal, the employee underlined he had not been informed by the employer about the purpose of processing his personal data through video surveillance in terms of Article 13 of the GDPR, and that the data obtained by violation of GDPR provisions may not be used for termination of employment contract.
This case ultimately reached the Federal Labor Court, which ruled that personal data should be deleted if unlawfully processed, in accordance with provision 17(1)(d) of the GDPR, except in case where the processing of such data is still necessary for establishing, exercising or defending legal interests, which represents the exception stipulated by provision 17(3)(e) of the GDPR.
In this sense, the court further underlined that provision 17(3)(e) of the GDPR stipulates the “balancing of interests directed at proportionality” i.e., right to defense in the court procedure is one of the fundamental rights guaranteed by Article 47 of the European Charter on Human Rights, wherefore, in order for the request for data erasure to be justified, it is necessary for the rights of data subjects to be severely jeopardized and/or harmed.
Accordingly, the court took the position that “the influence of video surveillance on the subject of data implies possible impairment of his right to self-determination”, i.e., that actions of the employee in this particular case were not limited by the existence of video surveillance and that the employee, although aware of the existence of cameras, decided to commit disciplinary offence. Therefore, the circumstance that the employee referred to before the court (absence of information) in order to limit the use, i.e., scope of recording made through video surveillance does not represent his guaranteed right because personal data protection is not and may not be used as protection against unlawful actions.
Case from Croatia
Similar reasoning was applied in the procedure before the Supreme Court of Croatia (Revr-1803/09), also referring to termination of employment.
Namely, as it was established from video camera recording that a worker on highway tollgate stole a part of the collected fund, the stated recording was used to cancel the employee’s contract and such dismissal led to a dispute between the employee and the employer.
In this procedure, the employee outlined the fact that the recording was made without his knowledge and consent, however the acting court assumed the position that such circumstance does not imply that the evidence (video recording) was unlawfully obtained, hence it can be used for the purpose of terminating employment contract. Namely, the camera was installed so as to cover the area of cca 150 m2 of public space, wherefore the recording of cash register is of such nature, i.e., quality that it does not interfere with privacy of the person employed on such post. Also, the very recording was made in relation to the activities within the work process, wherefore there is no room for the employee’s indication that this was a mobbing situation.
Domestic court practice
However, domestic court practice currently has a different standing in this respect.
Namely, according to the ruling of the Court of Appeal of Niš, Gž 6458/2016 of March 17, 2016, video recording may be used as evidence at court given that it was provided in accordance with the Law on Personal Data Protection.
It is stated in the rationale to the ruling that the employer, as defendant in this case, founded the decision on employment termination solely on video recording from security cameras, while it failed to prove that the employees had been notified of the purpose of installing video surveillance in working premises, wherefore the defendant cannot be deemed to have doubtlessly established the breach of working duty as charged to the employee i.e., plaintiff, which renders the disputed decision on employment contract termination unlawful.
One should certainly bear in mind that there is no available practice of the Supreme Court of Cassation on this matter, and that each individual case should be estimated according to all relevant circumstances.
Furthermore, this position of the court can be subject to consideration from the aspect of application of relevant laws. In other words, it is questionable whether in this case the employer’s omission can be sanctioned apart from surveillance over the application of regulations on personal data protection, i.e., in the field of labor relations. This is even more so considering that regulations on labor relations do not stipulate employer’s obligation to inform an employee in advance about all hypothetical means that may be used against the employees for establishing the breach of working duty or disrespect for the working discipline. If the video surveillance system was installed so that it can be simply detected (i.e., not concealed) by reasonable observation, and if appropriate marks were displayed indicating that the area concerned was covered by video surveillance, in accordance with the Law on Private Security, there are no grounds for defending the position that the employee was unaware that his behavior i.e., activities or omissions can be captured in video recording and that the employer may be aware of that.
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