Court case 10 Sa 2130/19 – Court Ruling (Germany, 2020)

The employer runs a radiology practice and until 1 August 2018 had been using printed time sheets to keep track of how many hours the employees had worked. The employee who is a party to the case has refused to use the new fingerprint time-tracking system, and continued to manually write down the worked hours on the old time sheets. The employer then issued several warnings to the employee, urging him to use the new system. On 5 October 2018, the employee received a first written warning from his employer, urging him to start using the fingerprint system. Despite the warning, he refused to do so and continued using the printed time sheets. On 26 March 2019, the employee received a second warning which threatened with the possibility of immediately terminating his employment if he continues to refuse using the fingerprint system. Were the employer's warnings rightfully issued, and the processing of the fingerprint data lawful in accordance with Article 9(2)(b) GDPR? Both courts decided that the employer had to remove the warnings issued towards the employee, and that the employee was not obliged to use the fingerprint system and therefore did not violate his duties. The courts first stated that the only possible legal grounds for the processing operation could be Articles 9(2)(a) or (b). As the employee clearly did not give his consent, the courts did not elaborate further on Article 9(2)(a). With regards, to article 9(2)(b), the first instance court (ArbG Berlin) carried out a three-step assessment, based on: - the suitability of the biometric procedure for the purposes of the employment relationship - whether there were less intrusive means of attaining the purpose - a comprehensive weighing of interests The court concluded that an employer's interest in biometric access control systems to areas with sensitive business, production, and development secrets would be more likely to prevail than in the context of a time-tracking system. Therefore, in this case th