Checking working hours via camera at the factory gate is not permitted
Cameras at the factory gate of a company are not suitable for monitoring employees' working hours. The judges of the Lower Saxony Higher Labor Court ruled accordingly. In the specific case, a foundry company had wanted to dismiss employees for working time fraud and had referred to the video recordings at the factory gate as evidence. According to the ruling, the dismissal is not effective and an appeal has already been lodged with the Federal Labor Court.
In the vast majority of cases, employee working time fraud is punished with dismissal by the employer. However, video surveillance at the factory gate cannot be used as evidence for this. This was decided by the Lower Saxony Higher Labor Court in a ruling from July 2022 (8 Sa 1150/20). The dismissal of an employee without notice is initially annulled.
Working time fraud in a foundry: dismissal of an employee without notice
In this particular case, the staff had reported to the managing director of a foundry that some employees were committing working time fraud. The specific allegation was that the employees were leaving the company premises after electronically recording their attendance at the start of the shift and only returning at the end of the shift. As this was obviously a deliberate manipulation of working hours, the boss of the foundry dismissed one employee. The employer used the electronic attendance recording and the video recordings of the entrance gates of his company as evidence.
Termination stopped: Video recordings are taboo as evidence
In the subsequent trial, the competent judges from Lower Saxony primarily dealt with the question of whether the video recordings made by the company were valid as evidence or not. The clear decision of the Higher Labor Court: the dismissal is not effective, as the evidence cited by the employer is taboo. Although breaches of duty in the recording of working hours, for example manipulation of working time forms, could certainly lead to extraordinary dismissal, this cannot be justified in the specific case by the evidence presented. This includes
- Card readers for electronic attendance recording
- Video recordings and camera material
Card readers and video recordings are not suitable evidence
The former is personal data that may not be used for any other purpose. As this is clearly regulated in a company agreement, this evidence cannot be used to prove manipulation of attendance at the company. The footage from in-house cameras is equally unusable, as the company itself pointed out on information boards that the recordings are only stored for 96 hours. The video recordings are not suitable as evidence in any subsequent legal proceedings, as the employer would otherwise be in breach of its own guidelines. Even the consent of the works council to use the images would not change this. Camera recordings are prohibited from being used as evidence if they were not made in compliance with data protection regulations.
In general: No video surveillance to monitor working hours
Furthermore, the Higher Labor Court found that video surveillance at the factory gate was not appropriate or necessary for monitoring working hours. After all, the actual work does not begin when the employee enters the premises, but when the work to be performed starts. In general, it can be concluded from the ruling that video recordings in the workplace remain an extremely sensitive issue. Video recordings can only be used as evidence in labor courts if they are used in compliance with data protection regulations, which is the case in very few companies.
The judgment from Lower Saxony is not yet legally binding. The employer has lodged an appeal.
