Under the new Basic Data Protection Regulation (DSGVO), which entered into force in May this year, workers may be entitled to compensation if their employer fails to comply with data protection rules.
One employee found that his employer had installed hidden video cameras in the rooms used by all employees, such as storage and sales areas, which recorded whenever a person was moving around the recording area. This constitutes a secret surveillance of the employees and is therefore inadmissible. Asked about this by the employees, the employer had the camera removed.
Even before the DSGVO came into force, the Federal Labour Court had consistently ruled that it was forbidden to monitor employees unless there was „a suspicion of a criminal offence or other serious breach of duty based on concrete facts“ (cf. inter alia BAG of 27.07.2017 – 2 AZR 681/16, NZA 2017, 6). The new basic data protection regulation therefore does not change anything in this respect.
If an employer disregards these legal regulations, for example if video surveillance is nevertheless carried out, the employee is entitled to claim damages from the employer due to unlawful data collection. It is important that the employee does not have to prove that he has suffered a loss that can actually be measured. The employer infringes the employee’s personal rights through his actions, which triggers a claim for damages under the DSGVO. The amount of the compensation is at the discretion of the labour court and does not have to be quantified by the employee himself.
In the above example, it led the Labour Court to consider a compensation of EUR 2000.00 to be appropriate, even though the duration of the monitoring was of manageable duration.
The new DSGVO provides employees with completely new possibilities – in particular in the event of a tense employment relationship or a pending dismissal dispute, the employee should have the employer examine whether there are grounds for a claim for damages in the event of an infringement of data protection regulations by the employer.