Labor Court of Berlin: data protection in time tracking systems

Stefan Hessel

The Judgment of 16 October 2019 (Case No. 29 Ca 5451/19) was based on a complaint from an employee seeking the removal of multiple warnings from his personnel file. These warnings had been issued by the employer because the employee had refused to use a time tracking system with fingerprint ID after its introduction by the employer. He also had not consented to its use.

The Labor Court of Berlin found that the employee is not obligated to use the time tracking system. It ruled that the requirements for removal of the warnings, which can be requested by an employee in accordance with §§ 242, 1004(1) Sentence 1 of the Civil Code, have been met in this case and ordered the employer to remove the warnings.

As grounds for its judgment, the court first cited the fact that the information stored in the time tracking system is biometric data in accordance with Article 9(1) of the GDPR (PDF) and represents special categories of personal data in terms of § 26(3) of the Federal Data Protection Act. The court reached this conclusion based on the functioning of the time tracking system. While the system does not store the employee's complete fingerprint, only the minutiae, the latter are individual non-heritable ridge features which can be clearly matched to the fingerprint.

Processing in the present case cannot be based on consent, as the employee had not consented, or on a collective bargaining agreement. The court therefore examined whether processing might be justified based on § 26(1) of the Federal Data Protection Act. After considering the employee's interests which merit protection in this case, the court concluded that fingerprint-based time tracking represents a substantial infringement of the data subject's fundamental rights and freedoms. This infringement outweighs the employer's interest in preventing abuse, certainly in the absence of concrete evidence that such abuse has occurred in the past or an explanation of existing gaps in alternative time tracking systems which do not store biometric data. The employer in the present case failed to cite any such exceptions and the court therefore found against the employer.

Unsurprisingly, the Labor Court's decision imposes strict requirements for the processing of biometric data by time tracking systems. While it does not find that biometric time tracking systems are unlawful per se, it requires valid reasons for using such a system, such as the occurrence of abuse in existing systems. In light of this ruling, companies which use such systems would be well-advised to closely examine the legal basis for use of the system. They should also examine in this context whether sufficient technical and organizational measures have been implemented for protection of the data, the requirements for which are particularly high for biometric data.


Update of 27 August 2020

In its Judgment of 4 June 2020, the District Labor Court of Berlin-Brandenburg issued an appellate ruling on the use of biometric time tracking systems, in which it largely adopted the view of the trial court, the Labor Court of Berlin. Accordingly, the appellate court agreed that significant hurdles have to be cleared before biometric time tracking systems may be used. First, use of the system has to be "necessary" in terms of § 26 of the Federal Data Protection Act, an assessment which is to be made by weighing and balancing the employer's interest in processsing the data against the employee's right to privacy. Secondly, systems of this kind cannot be used if such use is opposed by legitimate interests of data subjects. In the present case, however, the employer was not even able to show that the system was necessary."

[updated August 2020]