In an employment law dispute, the Federal Labor Court ruled on 22 September 2017 (case reference: 2 AZR 848/15) that the use of a chance find from video surveillance can be considered admissible.
This means that if covert, justified video surveillance is carried out in a supermarket on suspicion of cigarette theft, other criminal offenses discovered in this way can also be used as evidence.

In the opinion of the Federal Labor Court, the general right of personality is not impermissibly violated by this and must therefore take second place to the interest of criminal prosecution.

Deputy store manager defrauds supermarket with deposit voucher

When the employer – the owner of a supermarket – discovered a tenfold loss in the “tobacco/cigarettes” and “non-food” areas during an inventory compared to the previous year, he ordered covert video surveillance of his employees in the checkout area.
The works council agreed to the covert video surveillance after previous bag checks, which would have revealed a theft, did not lead to any results.

But instead of catching the cigarette thieves, the deputy store manager was filmed scanning a sample deposit bottle and keeping the EUR 3.25 deposit for herself.

As a result, the deputy store manager was dismissed without notice after 15 years of service due to the embezzlement.

Düsseldorf Regional Court: Breach of trust justifies termination without notice

The previous ruling by the Düsseldorf Regional Court (December 7, 2015 – 7 Sa 1078/14) confirms that a serious breach of trust can be justified even in the event of relatively minor damage amounting to EUR 3.25. This in turn can lead to justified termination without notice.
This in turn can lead to a justified termination without notice.
So far so good.
This puts the LAG in line with the much-discussed case law of the BAG in recent years, including the Emmely case.

BAG confirms usability of random findings from video surveillance

However, the subject of dispute in the appeal proceedings was the usability of the video recordings.
From the outset, these were only intended to help solve the cigarette thefts.
However, if they show another criminal offense through a so-called “chance find”, the Federal Labor Court held that this could also be used.

No unlawful infringement of the general right of personality or right to the image

The BAG makes it clear in its ruling that the general right of personality and the right to one’s own image are not violated in an impermissible manner by the recordings.
Because

Interference with employees’ right to their own image through covert video surveillance is permissible if there is a concrete suspicion of a criminal offense or other serious misconduct against the employer.

However, only if there is no alternative to video surveillance.

According to the old Federal Data Protection Act (BDSG), the personal data from an originally justified video surveillance may also be processed and used if this is necessary for the decision on a termination (Section 32 (1) sentence 1 BDSG-old).
The use of the incidental finding from the video surveillance was therefore not objectionable.

No significant change with the GDPR and the new BDSG

The new BDSG now regulates similar usage authorizations in § 26 BDSG, namely:

Personal data of employees may be processed for the purposes of the employment relationship if this is necessary for the decision on the establishment of an employment relationship or, after the establishment of the employment relationship, for its implementation or termination or for the exercise or fulfillment of the rights and obligations of the representation of the interests of the employees arising from a law or a collective agreement, a works or service agreement (collective agreement).

This means that even in the era of the GDPR, no other result can be assumed.