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Is it permissible to use fingerprints to record working time?

Electronically signing in to a smartphone, tablet or laptop is, in practice, happening more and more frequently via a personal fingerprint. However, in one specific case, the Berlin labour court recently ruled that using fingerprints to record working time is not permissible.

Introduction of a new time recording system

The employer, against whom the complaint was filed, had introduced a new time recording system in August 2018. Employees signed in and out by placing their fingers on a terminal. Here, so-called minutiae (individual, not inheritable finger line bifurcations) are extracted from the employee’s fingerprint using a special algorithm. This minutiae data record is stored in the terminal, although not the fingerprint itself. It is not possible to generate the fingerprint from the stored data record. The fingerprint is then compared with the stored data.

One employee refused to use the time recording system and also declined to grant a declaration of consent, whereupon the employer issued several warnings to the claimant. The employee making the claim requested that the warnings should be removed from his personnel file.

Admissibility limits

The Berlin labour court, in its ruling from 16.10.2019 (case reference: 229 Ca 5451/19) held the view that, in the case in question, using fingerprints to record time was not necessary and upheld the case. The minutiae data record constitutes biometric data within the meaning of Art. 9(1) GDPR. These belong to special categories of personal data in accordance with Section 26(3) of the Federal Data Protection Act. The processing of such data in the context of employment circumstances is only permissible if the processing is necessary for the purpose of exercising rights or fulfilling legal obligations arising out of the employment relationship and if there are no grounds for assuming that the employee has an overriding legitimate interest in excluding such processing. The employee can also grant his/her consent for this.

Please note: Here and in similar cases the applicable principle is that the more intense the interference with the personal rights of the employee, the more important the purpose pursued by the employer has to be (e.g. the protection of secrets related to trade, production and development).

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