Say cheese at the car wash – taking photos of ill employees

Taking pictures in public of an employee who is supposedly sick violates the employee’s general right of personality (Allgemeines Persönlichkeitsrecht, APR). However this violation can be justified by the employer’s interests.

In the case at hand (docket number: 10 SaGa 3/13), the plaintiff was absent on sick leave when his immediate supervisor coincidentally ran into him at the local car wash where the plaintiff was cleaning a car. The supervisor was surprised by the plaintiff’s physical condition and took three pictures of the plaintiff with his phone to document his observations. The plaintiff regarded his general right of personality as being violated and brought an action for a preliminary injunction to prevent the defendants (his immediate supervisor and his employer in general) from taking any more photos of him or observing him secretly him and to require them to hand over to him all footage of him taken at the car wash.

Like the labour court in the first instance, the higher labour court Rhineland-Palatinate (Landesarbeitsgericht Rheinland-Pfalz, LAG) declined the action for injunction. According to the court an employee’s general right of personality is not guaranteed in an absolute way. Violations of this right can be justified by certain employer interests that appear to be worthy of protection. In those cases the violation of the general right of personality cannot be seen as per se unlawful. The plaintiff’s general right of personality was violated when the supervisor took the photos of him. However, the employer also had an interest in documenting the physical activities of the plaintiff at the car wash for evidential purposes, as this might have been proof that the plaintiff was in fact not sick and could have come to work that day. In addition, the violation of the plaintiff’s general right for personality was not severe, as the supervisor had seen him in person and therefore was available as a witness and as the photo was taken at a public place.