Damages for pain and suffering in cases of unlawful surveillance

BAG, judgment dated 19.2.2015 - 8 AZR 1007/1

The Federal Labour Court has once again concerned itself with the possibility and admissibility of secret photo or video surveillance of employees. It is resolutely standing by its previous case law (BAG 7.10.1987 - 5 AZR 116/86, BAG 27.3.2003 - 2 AZR 51/02; BAG 21.6.2012 - 2 AZR 153/11; BAG 21.11.2013 - 2 AZR 797/10).

Strict requirements on secret photo or video surveillance

The secret taking of photo or video recordings can be justified within the framework of Section 32 Subsection 1 Sentence 2 BDSG (German Federal Data Protection Act) given the presence of four preconditions:

1. There must be a specific, fact-based suspicion of punishable action or of other serious misconduct.
2. Less drastic means of clarification must offer no prospect of success or already have been unsuccessful.
3. The undercover photo or video surveillance must be the only practical means remaining.
4. A conclusive assessment must show no disproportionality of the surveillance.

Damages for pain and suffering as a result ofviolation of personal rights

Violation of these principles shall simultaneously constitute violation of personal rights (Art. 2 Subsection 1 Basic Law in conjunction with Art. 1 Subsection 1 Basic Law) and of the right to informational self-determination. Given sufficient severity, a violation of the law can be sanctioned by damages for pain and suffering (Section 823 Subsection 1 BGB (German Civil Code)) as well as triggering other legal consequences. The Federal Labour Court has applied these principles in the following case:

A female employee had a dispute with her director. Shortly afterwards, she was off sick for a total period of roughly two months. The first four medical certificates were issued by a specialist general practitioner. The two further medical certificates were issued by a specialist doctor for orthopaedics. The employee initially informed the director that she was suffering from pleurisy and later that she had a slipped disc. The employer was suspicious as regards the incapacity for work, and arranged for a detective agency to take photos and video recordings as part of surveillance of the employee.

The Federal Labour Court declared that the surveillance was inadmissible. In the opinion of the Federal Labour Court, not even the first prerequisite for secret photo or video surveillance was given. The employer had no sufficient factual points of reference for a concrete suspicion of a criminal offence (feigning of incapacity for work). The medical certificates were correct. Their legal relevance was likewise not diminished. Mere suspicions are not sufficient as justification of secret surveillance. There is a need for credible, specific circumstances.

The Federal Labour Court affirmed the decision of the State Labour
Court ordering the employer to pay damages for pain and suffering. The damages for pain and suffering totalled 1,000.00 EUR. The employee had filed legal action asserting damages for pain and suffering of 10,500.00 EUR.

Summary

Secret photo or video surveillance can be considered for clarifying serious misconduct. Nevertheless, it presupposes the existence of a justified suspicion which must be based on specific facts. Mere presumptions are not sufficient. Once the first barrier has been overcome, the further preconditions for secret photo or video surveillance must be checked.