New case law on retention periods for video surveillance at the workplace

By Gertrud Romeis, Christian Wirtz, Kathrin Kruse, Benjamin Karcher, Dr Catharina Klumpp

10-2018

While many companies are still busy setting deadlines for the storage of personal data and establishing appropriate processes for deleting such data in the wake of GDPR, additional guidance relating to the retention periods of video recordings has come following a judgment of the Federal Labour Court (FLC) (dated on 23 August 2018, ref. 2 AZR 133/18 – decision not yet published).

The FLC were deciding on the effectiveness of a termination. The plaintiff was employed in a tobacco and newsagent’s shop. The defendant had installed an open CCTV system in the shop, designed to protect the property against both customers and employees. After detecting a deficit stock in tobacco products, the employer reviewed the CCTV. Footage over six months old confirmed repeated thefts by the plaintiff, which led to her termination.

The plaintiff's unfair dismissal claim was successful in the first instance. The State Labour Court upheld the plaintiff's argument that the CCTV footage should have already been deleted and could not be used as evidence in court after six months following the recording.

The FLC overturned the judgement of the State Labour Court and referred the case back to it, stating that the video recordings were admissible evidence, provided that the video surveillance had generally been a permissible, open surveillance. The court further ruled in this case that, provided the installation of the CCTV was legally permissible, the evaluation of the recordings and their use as evidence in court six months after the actual recording did not interfere with the employee’s personal and data protection rights. According to the decision, an employer is not obligated to review such records immediately, but is allowed to retain such records as long as there is a legitimate reason to retain the records and only to review them when there is a reason to do so. Provided that the creation of the recording was legally permissible, then according to the decision, the passing of time will not make such record illegal.

Although the decision dealt with a situation from 2016, the FLC has expressly pointed out in the course of the (re-) referral that the new regulations under GDPR as well as the new German rules on data protection, do not oppose the use of the records in the further proceedings.

In terms of employment law, the question of the admissibility of an interference with the general right of employees to privacy, such as video surveillance, must be examined by way of a balance of interests between both parties' rights. This principle continues to apply post-GDPR. However, the principles of purpose, data minimization and storage limitation enshrined in GDPR, stipulate that video records may only be kept for a limited period of time. Furthermore, Art. 17 para. 1 lit. of GDPR sets out that collected data may not be stored and is to be deleted when it is no longer necessary for the purpose.

In this context, both the relevant data protection authorities and the FLC have assumed that a timely evaluation of records should be conducted and possibly after an inconclusive review the records should be deleted. While the data protection authorities consider a maximum retention period of 48 hours as admissible if there were no special occurrences, the FLC was previously more generous in this respect and decided in 2008, ‘”that recorded image data must be deleted immediately after evaluation, but at the latest, 60 days after their recording”, unless they are needed to secure evidence (Federal Labour Court, ref. 1 ABR 16/07).

This judgment significantly strengthens the rights and opportunities of employers to show evidence of employees guilty of misconduct. According to previous case-law, the recommendation to employers was that legitimate video recordings should be evaluated as quickly as possible and then deleted. However, the present decision justifies refraining from immediate evaluation and instead carrying out the evaluation on occasion or cause. For this purpose, legitimate video recordings can be kept for a period of up to six months.