In this article for Börsen-Zeitung, Dr Friedrich Popp discusses a June 2023 German Federal Labor Court (Bundesarbeitsgericht) decision that redefined the effect of data protection laws on evidence used in termination proceedings.

In summary, if an employee challenges his or her termination before a German labor court, the employer bears the burden of proof for the ground of termination.

Case law previously suggested that evidence gathered by an employer in violation of data protection laws, however small, cannot be relied upon in court, to avoid a continuation of the original infringement of the employee.

The German Federal Labor Court ended this line of jurisdiction in June 2023 by requiring a balancing of the employee’s fundamental right to data protection with the employer’s fundamental right to a fair trial.

Thus a criminal employee can no longer invoke data protection rights to prevent his or her employer from using video surveillance evidence that is flawed with minor data protection violations.

In this decision, the highest German court in labor matters further clarified that shop agreements (Betriebsvereinbarungen) cannot hinder a labor court from assessing evidence.

To view this article in German, click here.