Monitoring of employees during the course of employment in Germany

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Like English law, German law places certain limitations on the monitoring of employees. For example, video surveillance of a company’s premises must take the privacy rights of the employee into account and which means full surveillance of individuals is not permitted.

In addition, covert monitoring measures are generally prohibited as a matter of principle. This also applies to the monitoring of a company’s IT infrastructure. In some cases, exceptions may apply. A number of recent cases about employee monitoring received nationwide media attention in Germany. Employers should be aware of basic principles of applicable data protection law and apply diligence when conducting monitoring measures, not only in order to ensure compliance with the law but also to avoid negative publicity.

German case law holds that monitoring by means of video surveillance is generally allowed as long as the principle of proportionality is respected. This requires the employer to assess, prior to implementation, which areas should be monitored, whether the monitoring is appropriate both in terms of how it is carried out and its duration, and how this might affect the privacy rights of employees. It is also important to take into account whether monitoring is necessary as a result of specific past incidents or whether it is implemented as a generic policy…

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