Arbeitsrecht: Unzulässig überwacht: Kann ich trotzdem gekündigt werden?

When an employer illegitimately monitors an employee, the insights gained from such surveillance could potentially lead to legal consequences for the employer, including the possibility of termination. According to Patricia Threin, a lawyer at DGB Rechtsschutz GmbH in Frankfurt am Main, the courts weigh the employee's right to personal privacy against the employer's right to information and property. Generally, privacy is not considered the same as proof of wrongdoing.

A lawful utilization of unlawfully obtained data or insights, obtained through video surveillance, might be deemed permissible by the Federal Labour Court (decision 2 AZR 296/22), if the employee has committed a willful and serious breach of duty, such as theft or fraudulent misuse of work time. This applies even if the video surveillance did not fully comply with data protection regulations, for example by violating the employer's obligation to inform employees about monitoring or by failing to meet storage time limits.

It must be noted that filming employees secretly via video camera is illegal. If the employer filmed an employee secretly and without any valid reason using a video camera, they could try to enforce a dismissal of the employee using the data or insights obtained from the illegitimate video surveillance. The employee could then claim compensation for damages, as their personal rights have been violated.

Moreover, the data protection authorities could impose substantial fines on the employer. It is advisable for affected individuals to seek advice from their works council, trade union or a lawyer.