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Dismissal on the grounds of time fraud is possible even after unlawful data evaluation

The General Data Protection Regulation (GDPR) specifies, among other things, how video surveillance has to be run. In particular, it stipulates for how long the data may be stored and used appropriately. Nevertheless, video surveillance that breaches the general principles of data protection law can also result in a dismissal, as demonstrated by a dispute that was recently resolved by a labour court.

In a case that was decided by the Federal Labour Court (Bundesarbeitsgericht, BAG), in its ruling of 29.6.2023 (case reference: 2 AZR 296/22), a worker was employed at a foundry where there was video surveillance and this was also pointed out through appropriate signs. There was one day when the employee entered the business premises obviously with the intention of being paid for this day. Following an anonymous tip-off about employee time fraud allegedly on a regular basis, the employer had a look at the surveillance footage and found that the employee had left the works premises again even before the start of the shift. The employer considered this to be time fraud and dismissed the man. 

The employee launched a legal action against the employer over unfair dismissal in the belief that he had worked on that day. Moreover, the surveillance videos were inadmissible as evidence and could not be taken into account in unfair dismissal proceedings. For this reason he even won his case in the lower courts. 

However, the BAG took a different view. In unfair dismissal proceedings there is generally no prohibition on the use of such footage from overt video surveillance that is supposed to provide evidence of an employee’s behaviour in deliberate breach of contract. This would even apply if the employer’s surveillance operation did not fully comply with the requirements under the GDPR. Therefore, on these grounds the BAG referred the matter back to the lower court (the competent state labour court in Lower Saxony).

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