26. May 17

BAG: Exceptional notice of dismissal effective if there is video evidence

Even covert video footage can potentially justify exceptional notice of dismissal. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in its judgment of September 22, 2016 (Az.: 2 AZR 848/15).

That being said, the BAG also placed restrictions on the extent to which covert video footage can be used. The Court held that encroachments in the form of concealed video surveillance on privacy law with respect to an employee’s rights in relation to his own image are permissible if the following conditions are met: there are specific grounds for suspecting that a criminal act or some other kind of serious transgression to the detriment of the employer has occurred, less radical measures for the purposes of pursuing this suspicion have been exhausted to no end, covert video surveillance is thus virtually the only remaining measure and is all in all not disproportionate. With this ruling, the BAG confirmed the decision of the Landesarbeitsgericht (LAG) Düsseldorf [Regional Labour Court of Düsseldorf] (Az.: 7 Sa 1078/14).

In the instant case, a supposed insignificant sum of three euros and 25 cents cost a deputy branch manager her job. She had repeatedly put a disposable bottle with a refundable deposit through the scanner and pocketed deposit money amounting to three euros and 25 cents without giving up the empty bottle. We at GRP Rainer Rechtsanwälte note that it is not the comparatively minor loss that was decisive in terms of the effectiveness of the exceptional notice of dismissal but rather the breach of trust on the part of the employee.

The deposit fraud came to light by chance. The employer had noticed excessively high inventory losses. In coordination with the works council, the checkout area was subject to covert video surveillance for two weeks. Although it was two other employees who were under suspicion, the video footage convicted the deputy branch manager, who subsequently received both exceptional and, in the alternative, ordinary notice of dismissal.

Her action for unfair dismissal later failed before the court of last instance. The BAG confirmed that tampering with the checkout constitutes good cause justifying exceptional notice of dismissal. It went on to say that it did not come down to the extent of the losses and that it had been permissible to make use of the video footage because all other less radical means of investigating the losses had been exhausted to no end. Furthermore, it was said to be irrelevant that the employee in question was not originally under suspicion.

Effectively terminating an employment contract can prove to be challenging. Lawyers who are versed in the field of employment law can advise on drafting employment contracts, notices of dismissal, severance packages as well as in relation to other issues pertaining to employment law.

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