A very instructive decision by the Higher Labor Court Schleswig-Holstein on employee monitoring has just been published:
The employer may, in principle, introduce video surveillance in the workplace. The permissibility of the concrete measures is, however, to be assessed on basis of the principle of proportionality and in light of the actual impingement of personal rights to the detriment of the employees.
Crucial aspects of such an assessment are the specific technical circumstances of the video surveillance. There is only a very small impact of violation if:
- Fixed images are recorded only
- Zooming-in is not possible due to low resolution (i.e. it is almost impossible to recognize faces)
- The fixed images are overwritten every 30 seconds (and not saved)
- The employees are aware of the surveillance (no secret cameras)
It can be held, hence, that it is absolutely critical that from a technical side a behavioral control of the employees would not even be possible.
[LAG Schleswig -Holstein, decision dated 29.08.2013, reference 5 TaBV 6/13]
A video surveillance would under German Employment Law certainly not be permissable where it allowed to generate motion profiles of particular employees or to prosecute wrongdoings of the employees.