(Higher Labor Court of Mecklenburg-West Pomerania, decision dated November 12, 2014 – 3 TaBV 5/14)

If an employer plans to monitor the behavior or performance of employees by introducing or using technical systems that are designed or at least suitable for such purposes, the Works Council is entitled to an enforcible right of co-determination. A right to co-determination also exists if the organization of the business or the organizational conduct of the employees is governed by a measure undertaken by the employer. If the employer and the Works Council cannot come to terms, the employer must appeal to the Arbitration Committee, provided that the employer wishes to retain the measure planned. If an agreement is not reached in the Arbitration Committee, the Arbitration Committee shall make a decision binding on both parties. As long as there is no agreement on the proposed measure, or the missing agreement has not been substituted for by the ruling of the Arbitration Committee, the Works Councils is, in the view of the Federal Labor Court, entitled to injunctive relief – although this is actually not stipulated by law.

Disputes generally arise over the question of when technical devices are at the least capable of monitoring the performance and conduct of employees. When video cameras are installed on business premises or in the operational facilities, such suitability for monitoring is as a rule granted. In the case ruled on by the Higher Labor Court of Mecklenburg-West Pomerania, a hospital manager had installed a dummy video camera on the exterior of the hospital building. The Works Council held the view that they had the right of co-determination regarding the installation, operation and use of this dummy camera. The Higher Labor Court rejected those claims. A dummy camera is objectively not suitable for the surveillance of workers. The conduct of the workers is also not influenced. Employees can still use the affected entrance as before, without being subject to additional new regulations. According to the Higher Labor Court, the general personal rights of the individual employees are therefore not impinged upon.

Practical recommendations:
To avoid prohibitory injunctions in particular, any measure should first be examined for whether it can impinge upon the rights of the Works Council. However, even if the Works Council is involved, the employer must comply with the provisions of the Federal Data Protection Act and the right of privacy of the workers. Whether dummy cameras are subject to data protection laws and whether they could affect the employee’s right of privacy was till now disputed. The ruling of the Higher Labor Court now provides more legal certainty here. However, caution is advised, as this decision will not necessarily be transferable to dummy cameras installed within an operational facility. The right to co-determination, data protection and the effect on privacy rights must all be reviewed and verified here before proceeding with such an installation.

By Tobias Grambow