In the course of 2018, the works council had concluded a company agreement with the employer, a logistics company that employs approximately 1,630 people at the site, on the installation and use of surveillance cameras in the company. The works agreement stipulated, inter alia, that the recordings may only be stored on local network recorders.
During the Corona pandemic, the employer used cameras installed on the company premises to identify areas where the people present in the company (employees, contractors, business partners and other visitors to the company) were not able to maintain the safety distances recommended due to the Corona pandemic. The video cameras installed on the premises automatically generate still frames at five-minute intervals using anonymization software. The software recognizes people, records the number of people in a frame and then classifies these still frames into different categories. Still frames including two or more persons were then forwarded to special employees for evaluation, whereby the depicted persons had been pixelated by the software. These employees used the pixelated still frames in order to determine whether a safety distance of two meters had been maintained. If this was not the case, they noted when and where the frame was taken and also determined why the distance requirement had possibly been violated. The result of the examination was then recorded in a report.
The anonymization software used by the company was located on data servers in Dublin (Ireland). The still frames were stored there for seven days and then automatically deleted.
The works council had requested the employer to stop transmitting and evaluating the camera data for distance measurement purposes and to comply with its co-determination rights. The employer did not comply with this out of court.
Subsequently, the works council initiated preliminary injunction proceedings against the employer for an injunctive relief. The Wesel labor court has upheld the works council's injunction:
The labor court found that the works council's co-determination right (Art. 87 Sec. 1 No. 6 BetrVG (German Works Constitution Act)) had been violated by the implementation and use of technical equipment because the recordings were not – as provided for in the works agreement – stored exclusively on local network recorders, but abroad. Since the data were stored contrary to the existing works agreement’s provisions, the employer who used the foreign software for distance measurement purposes would have had to involve the works council once more.
On the other hand, the court did not recognize a further violation of the works council's co-determination rights, which had also criticized the faulty installation of the cameras in the company, since a works agreement had already been concluded in connection with the cameras’ installation and the employer was rightly relying on the works agreement when implementing the measure.
The challenges related with the Corona pandemic can lead to internal conflicts. Although the company partners may initially have agreed upon quick and consensual solutions by working together in a spirit of trust, and even if they may have reached such solutions without formally observing co-determination rights, this does not result in an absence of co-determination rights to be observed by the employer. Works councils may at any time invoke compliance with co-determination rights. Furthermore, there are no permissible regulations according to which co-determination rights are not to be observed. The regulation of a company practice is (naturally) not applicable under works constitution law. In cases where any employees’ personal rights are particularly affected, which is always the case in connection with any monitoring measures, both parties should meet at an early stage in order to avoid delays in the measure’s implementation.