No right of co-determination concerning the setting up of a dummy video camera

LAG Mecklenburg-Western Pomerania, ruling dated 12.11.2014 - 3 TaBV 5/14

In its ruling dated 12 November 2014, the State Labour Court Mecklenburg-Western Pomerania (LAG MV) decided that under no conceivable circumstances is the Works Council entitled to a right of co-determination if the employer merely attaches a dummy video camera in the access area. The decision of the LAG MV clarifies a legal issue that has previously been disputed in literature.

The operator of a clinic had a dummy video camera attached in the outer area of the clinic building without the consent of the Works Council formed in the organisation. This was intended as a potential deterrent to third parties wishing to gain unauthorized access to the clinic building. The Works Council saw this as a violation of its right of co-determination and applied to the Labour Court Rostock for the appointment of an arbitration committee, with the aim of forcing the conclusion of a works agreement with the clinic operator on this matter.

The Labour Court Rostock initially approved the application of the Works Council, stating that it could not exclude the possibility of the attachment of the dummy video camera having a bearing on co-determination rights of the Works Council. An opposing view has now been taken by the LAG MV, which has rejected the application by the Works Council for the appointment of an arbitration committee.

Dummy video camera is not a technical surveillance device

The LAG MV initially concerned itself with the question of whether a co-determination right of the Works Council could result from Section 87 Subsection 1 No. 6 BetrVG (Works Council Constitution Act) (introduction of technical surveillance devices). However, the LAG MV ruled that this was not the case. Even objectively speaking, a dummy camera is not suitable for monitoring the conduct or performance of employees. The LAG MV also rejected analogous application of the standard as per Section 87 Subsection 1 No. 6 BetrVG. The sense and purpose of the standard is the protection of the employee’s general personal rights against interference through anonymous technical control devices. However, it is clear that no such interference is to be expected through a dummy.

Questions of organisation of the company and of conduct of employees in the company likewise not affected

The LAG MV also rejected a co-determination right of the Works Council under Section 87 Subsection 1 No. 1 BetrVG (questions concerning the organisation of the company and the conduct of employees in the company). Even at first glance, the attachment of a dummy video camera in the outer area cannot have any effects on the internal co-existence between employees and employer in the company. Finally, the employees could still use the entrance concerned, without checks being carried out on who enters or leaves the building through the entrance concerned and when.

The in part opposite legal interpretations put forward in literature were rejected by the LAG MV. The only decisive issue in terms of a co-determination right is whether there is an actual control effect. Only then could the employees’ personal rights be affected. This is not the case with a dummy.

Practical tip

No right of co-determination applies as regards the attachment of dummy video cameras. This creates legal clarity in a matter that was previously in part controversial. Employers can now decide freely whether and where dummy cameras are to be attached. Nevertheless, it is advisable to at least make it clear to the Works Council that the devices are indeed just dummies.

Nonetheless: civil-law claims of the employees to refraining are conceivable

Under an older decision of the Regional Court Bonn dated 16 November 2004 – 8 S 139/04 –, the mere presence of a dummy camera could however create pressure of adaptation and surveillance that constitutes interference with the general personal rights of the party concerned. In the opinion of the Regional Court Bonn, this results in civil-law claims to removal and to refraining. Video surveillance actually carried out can also trigger damage claims of the employees concerned (LAG Mainz dated 23.5.2013 - 2 Sa 540/12). Despite the absence of a co-determination right of the Works Council concerning the attachment of dummy cameras, it is therefore not possible to exclude civil-law claims of employees to removal and refraining.

Summary

According to a decision by the LAG Mecklenburg-Western Pomerania, the Works Council has no co-determination right concerning the attachment of dummy video cameras. The Works Council should however be informed that the cameras are indeed only dummies.