Employees may refuse to use an electronic time recording system operated with a fingerprint scanner if its use is not necessary, e.g. to prevent misuse in time recording – according to the ruling of the Berlin-Brandenburg Regional Labour Court (LAG) of 4 June, 2020 – 10 Sa 2130/19.
In the case on which the decision is based, the applicant refused to use a time recording system operated by a fingerprint scanner. The time recording system did not process the fingerprint as a whole, but only the finger line bifurcations (minutiae). The defendant then issued a warning to the plaintiff, following which the plaintiff brought an action for removal of the warning from his personnel file.
The LAG Berlin-Brandenburg ruled in favour of the applicant. The plaintiff was not obliged to use the time recording system. The warnings were therefore unjustified. The judges justified their decision as follows: the minutiae data set used is biometric data pursuant to sec. 9 para 1 of the European Data Protection Regulation (Datenschutzgrundverordnung – DSGVO) and personal data pursuant to sec. 26 para. 3 of the Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG). The processing of such special categories of personal data is generally prohibited by law and is only permitted in exceptional cases if:
- there is a voluntary declaration of consent by the employee,
- there is a collective agreement on this matter, or
- the processing of the data is necessary.
These conditions were not met in the present case. Neither a declaration of consent by the plaintiff nor a collective agreement which would have allowed the processing of the plaintiff’s personal data by the time recording system existed in the case decided. In addition, the LAG Berlin-Brandenburg decided that the recording of working time by fingerprint was not necessary either.
Whether the processing of personal data is necessary must always be assessed on the basis of a case-by-case weighing up of conflicting interests. In particular, no equally suitable measures may be available that would impair the employee’s general personal rights less severely. In addition, the impairment of the general personal rights and data processing must be in reasonable proportion. In the present case, the plaintiff’s general right of personality prevailed, since the defendant could not sufficiently argue that the time recording system is necessary to prevent abuse in time recording (e.g. by colleagues stamping time for other employees).
The decision of the LAG Berlin-Brandenburg is particularly relevant against the background of the ruling of the European Court of Justice (Europäischer Gerichtshof – ECJ) of 14 May, 2019 (Case C-55/18). The ECJ had ruled that employers are obliged to record the working time of their employees by means of time recording systems. Nevertheless, the admissibility of time recording systems using fingerprints under data protection law is subject to high requirements which can be reviewed by the courts in individual cases. In view of the fact that employees are free to revoke consent to the processing of their personal data once it has been granted and that they must not suffer any disadvantages from the refusal to grant consent – i.e. alternative time recording options must exist – the conclusion of a corresponding collective agreement is recommended.
In the event of unauthorised processing of personal data, fines of up to 20 million euros or, in the case of a company, up to 4% of the worldwide annual turnover of the previous financial year are threatened.
Dr. Lorenz Mitterer Katharina Schlonsak Lawyer Lawyer Specialist Lawyer for Employment Law