On Employee Consent to Video Surveillance at the Workplace

Individual, informed consent from an employee can be suitable for justifying video surveillance at the workplace.

Background

The plaintiff operates a pharmacy and has registered a very high level of lost merchandise in the past. He suspects that customers or employees are responsible. To contain the loss of merchandise, he installed video cameras as a deterrent to record both the sales floor and the area in front of the narcotics cabinet. Before starting the cameras, the pharmacist informed his employees, obtained a joint declaration of consent from all employees, and put up notices on the sales floor.

The data protection authorities issued a cease and desist order on the grounds that the video surveillance was unjustified and therefore prohibited. In his complaint, the plaintiff defended himself against this cease and desist order before the administrative court.

The judgment of the Saarlouis Administrative Court, docket no.: 1 K 1122/14

The Saarlouis Administrative Court ruled that the video surveillance of the sales floor was not permissible. Video surveillance is only authorized in publicly accessible areas insofar as it is required to protect legitimate interests for concretely determined purposes. The pharmacist was not able to justify the security risk necessary to fulfill this requirement. His general reference to theft in the pharmacy was insufficient. Therefore, the cease and desist order was upheld.
However, the video surveillance of the narcotics cabinet was permissible due to the valid consent of the employees. The preconditions for valid consent from employees are that those involved are informed on the concrete purpose of the surveillance and that they agree to it voluntarily and in writing. The court did not share the defendant's concerns that the relationship of dependency between employer and employee precluded the consent from being voluntary. Data processing is also practiced for other reasons within employment relationships, and in some cases even occurs without consent. Additionally, any disadvantage suffered by the employees due to their refusal to give consent would represent a gross violation of the employer's obligations, even obligating him to pay damages. Therefore, there must be concrete indications that the employee gave consent under compulsion in an individual case. Furthermore, the employees were able to avoid the video monitoring, as it was only selective, and they were not monitored continuously.

Comment

In its judgment dated 11 December 2014, the Federal Labor Court (docket no.: 8 AZR 1010/13) had already dealt with the consent of employees (with regard to data privacy), and had considered consent to be generally possible.
The Saarlouis Administrative Court is now providing a more detailed list of the formal requirements that such consent must fulfill. It emphasizes that a list of signatures under a single sentence, such as "I am aware that five surveillance cameras are set up in the pharmacy, and I consent to this surveillance" clearly does not fulfill the requirements. A joint declaration by all employees could be an indication that a "certain group pressure" had been created among employees, and that the declaration was therefore not voluntary. An individual consent by each individual employee accompanied by a declaration, on the other hand, would satisfy the court.

The Saarlouis Administrative Court therefore represents yet another instance in which the courts have held that consent is fundamentally possible in data privacy matters, thereby contradicting the prior legal position of the data protection authorities. Consent from employees on data privacy matters, therefore, can be a suitable way to justify data processing (such as video surveillance) that would otherwise be unlawful. This kind of consent could, however, be problematic for long-term data processing, since this could be subject to recall by the employees. According to the Federal Labor Court, however, the validity of such a recall always depends on the circumstances of the individual case.