Update Employment Law July 2019
Employee’s right of information and disclosure of their recorded personal information
State Labor Court (Landesarbeitsgericht; LAG) Baden-Württemberg dated December 20, 2018 - 17 Sa 11/18
Pursuant to Art. 15(1) GDPR, the employee may request information and a copy of the personal information which the employer has recorded of him/her. A general refusal by the employer to provide information or hand over the information due to justified third-party interests is not sufficient, but must be adequately explained by the employer.
FACTS OF THE CASE
In employment termination proceedings, the employee did not only assert claims for viewing of his employee record, but also a claim for disclosure of other personal performance and behavioral information - not contained in the employee record - stored by the employer. The employer issued a blanket refusal to provide such information, claiming that there were prevailing third-party interests worthy of protection.
The appeal before the LAG Baden-Württemberg was successful. The LAG believes that the employee is entitled to a right of disclosure and receipt of personal performance and behavior-related information stored by the employer pursuant to Art. 15(1) and (3) GDPR. The employee could also limit the claim to his performance and behavior-related information since, according to Recital 63 p. 7 relating to the GDPR, the data subject should have the right to limit his/her comprehensive information request himself/herself. The employer’s argumentation that there were no “negative lists or similar records” in addition to the employee records was not well-founded since merely the business emails presented by the employee provided evidence that personal information was collected - without direct allocation with the employee record.
However, according to the LAG, the right to receive a copy does not apply without any restrictions when and if this affects the rights and freedoms of other persons. Furthermore, the right to information and receipt of personal information is also restricted by Sec. 29(1) s. 2 German Federal Data Protection Act (Bundesdatenschutzgesetz; BDSG) if this would result in the disclosure of information which should be kept confidential by law or by its very nature, in particular because of the overriding legitimate interests of a third party. The employer must however clearly specify the reasons for non-disclosure and cannot in particular simply provide the blanket statement that “there are prevailing non-disclosure interests.”
The LAG has approved the appeal before the German Federal Labor Court (Bundesarbeitsgericht; BAG) with regard to the right to information, so that the last word of the BAG is still not spoken.
There is concern that employers will face claims for information pursuant to Art. 15 GDPR in the course of employment termination proceedings more often in the future in order to increase the pressure on the employers. Employers must prepare for this scenario. On the one hand, the introduction (where not available yet) of an electronic employee record seems obvious; thus, data can be accessed more readily and, at the same time, experience shows that the employer can monitor better what is added to the employee record. However, on the other hand, accessibility of the other data, if required by partial blackening of passages, must be ensured. Many companies must now act, in particular as far as identifying the parties in need of non-disclosure is concerned—even more so due to the German Classified Information Act (Geheimnisschutzgesetz). In legal proceedings, the employer must be able to demonstrate for which information the non-disclosure interest claim is asserted and the corresponding reason. Vice versa, one might ask in legal proceedings at what point a general right to information would have to be classified as an unjustified blanket request.