View source for LfDI (Baden-Württemberg) - 4 Sa 70/20

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|Type=Complaint
|Outcome=Rejected
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|Date_Decided=19.10.2021
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|Year=2021
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|Initial_Contributor=Carmen Pennanen
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The State Labor Court of Baden-Württemberg held that in the letter of invitation to BEM, the names of the parties to whom health data will be disclosed must be explicitly listed and the data subject must be informed of the consent and its necessity.

== English Summary ==

=== Facts ===
An employee (data subject) was unable to work for more than six weeks within a year due to illness, and the employer (controller) was liable for continued pay during absence. The controller invited the data subject to occupational integration management (BEM) by letter. The aim of BEM is to determine the health restrictions that have resulted in absences from work and to find possibilities of reducing them in the future to avoid dismissal. The data subject did not respond to this invitation, and the controller terminated the data subject's employment. 

The data subject complained about the correctness of the BEM initiation as they had not received the enclosures named in the invitation letter. The data subject requested that the employment relationship would not be terminated, and the controller was of the opinion that due to the continued payment of wages, it could no longer be reasonably expected to continue the employment. 

The court found that termination of employment relationship had not occurred, and the controller was ordered to continue employing the data subject. The controller appealed as they considered the judgment to be in error.

=== Holding ===
The court found the termination to be socially unjustified under §1(2) KSchG, which underlines steps for determining the social justifiability of dismissal. The balancing of interests was disproportionate as the controller did not initiate the BEM in an appropriate manner. 

The court applied [[Article 9 GDPR#2a|Article 9(2)(a) GDPR]], according to which the data subject could have voluntarily disclosed their health data defined in [[Article 4 GDPR#15|Article 4(15) GDPR]] to the site manager who was not involved in the BET. The court emphasised that in such a case, the data subject should be informed explicitly that the consent is voluntary becuase it is not necessary for implementing the BEM pursuant to [[Article 7 GDPR#4|Article 7(4) GDPR]]. However, the site manager was not on the list of members to whom the health data was disclosed. Thus, the data subject could not have known from the invitation letter that the disclosure of his health data to the site management could take place only with additional consent and within the BEM procedure and purpose.

The court concluded that the requirements for proper information about the use of data were not met and that the data subject's employment interest outweighs the interests of the controller. Therefore, the appeal was dismissed, and the data subject was entitled to a general claim for continued employment.

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the German original. Please refer to the German original for more details.

<pre>
State Labor Court of Baden-Württemberg judgment of October 20, 2021, 4 Sa 70/20
Data protection in the bEM

guiding principles

1. It follows from Section 167 (2) sentence 3 SGB IX (in the version applicable until June 9th, 2021, since June 10th, 2021: sentence 4) that the employee not only has to refer to the type and scope of the company integration management (bEM ) collected and used data. Rather, it also follows from this that the data processing must be carried out in accordance with data protection regulations.



2. Achieving the goals of bEM does not require that employer representatives not involved in the bEM procedure should be made aware of diagnostic data communicated by the employee in the procedure. If the employee is nevertheless required to consent to such data disclosure within the framework of Section 167 (2) sentence 3 SGB IX (in the version applicable until June 9th, 2021, since June 10th, 2021: sentence 4), the to indicate voluntariness.



3. If the information on data collection and data use gives the wrong impression that health data can be passed on to representatives of the employer who are not involved in the bEM process, this is at the expense of the employer. The misconception caused by the employer stands in the way of a proper initiation of the bEM.



(Confirmation and further development by LAG Baden-Württemberg 07/28/2021 - 4 Sa 68/20 -)


tenor

1. The defendant's appeal against the judgment of the Reutlingen Labor Court of November 19, 2020 (1 Ca 108/20) is rejected.

2. The defendant has to bear the costs of the appeal.

3. The revision is allowed.

facts

1
The parties are arguing about the effectiveness of an ordinary termination of the plaintiff's employment by the employer due to illness and, alternatively, about the plaintiff's continued employment.
2
The plaintiff, born on 00.00.0000, unmarried and childless, has been employed by the defendant in its company in R. since August 11, 2014 as a skilled production worker (EG 7 ERA) at an average gross monthly wage of iHv. most recently 3,442.73 euros.
3
The defendant employs around 8,000 people in its company in R. A works council has been formed in this company.
4
The defendant terminated the employment relationship with the plaintiff by letter dated March 5, 2020, which the plaintiff received on the same day, effective June 30, 2020. The present action for protection against unfair dismissal, which was received by the labor court on March 25, 2020, is directed against this termination.
5
The defendant bases the dismissal on health-related reasons.
6
In 2016, the plaintiff was unable to work for a total of 31.7 working days, in 2017 for a total of 51 working days, in 2018 for a total of 42 working days and in 2019 for a total of 43 working days. The defendant was obliged to continue to pay wages for all days of absence. In 2020, until the notice of termination was given, the plaintiff was again unable to work due to illness from January 6 to January 10, 2020. The defendant also had to continue to pay wages for this.
7
In a letter dated January 20, 2020 (page 58 and 59 of the labor court file), the defendant invited the plaintiff to a company integration management (bEM). As with previous invitations, the plaintiff did not respond to this invitation.
8th
The defendant has a works agreement concluded between her and the general works council on operational integration management (BV-bEM) (page 110-115 of the labor court file), supplemented by an "Agreement on BEM- Proceedings at location R.” (page 116 of the labor court file). The BV-bEM states in part about those involved in the bEM:
9
3. Parties
10
3.1 Operational Integration Team
11
The company integration team (BET) consists of named representatives from the HR department, the works council, the representative body for severely disabled people, the MED and the HSS. In addition to the supervising HR BP, the employee addressed can, in principle, call in another person from the members of the BET.
12
3.2 Integration Team
13
If adjustments to the workplace, process or conditions are required, the integration team - if available - can be consulted. The consent of the MA is required for this (Annex 4). If the MA does not give his consent, the BET continues the BEM with the measures possible for the BET. The integration team consists of representatives of the works council, the severely disabled representative, work planning, local site management, the employer representative for severely disabled, HRL, MED, HSS, HSE.
14
According to no. 10 of the BV-bEM, a data protection declaration in accordance with Annex 3c (page 89 of the LAG file) must also be attached to the letter of invitation. This appendix states in part:
15
I agree that the information collected as part of the BEM can be shared with those involved in the process (in particular the operational integration team (BET) and, if necessary, the supervisor, the translator, and if changes are required in the workplace HSE, TEF, site management) be made known. The purpose of data collection is to overcome incapacity to work and/or to prevent renewed incapacity to work and to keep the job.
16
The works council was consulted on the intended termination with a hearing letter dated February 17, 2020 (page 62-66 of the labor court file).
17
The plaintiff considered the dismissal invalid.
18
He said that he could not be given a negative health prognosis. Various clinical pictures are not predictable due to healing.
19
He criticized the correctness of the bEM introduction. In doing so, he claimed that he had not received the attachments named in the letter of invitation (letter of reply, data protection notice and list of BET members).
20
He also criticized the regularity of the works council hearing. Without knowing it, he denied that a list of absences had been submitted to the works council as an appendix to the hearing letter.
21
The plaintiff requested:
22
1. It is determined that the employment relationship of the parties is not terminated by the defendant's termination of March 5th, 2020.
23
2. In the event that the first motion is successful, the defendant is sentenced to continue employing the plaintiff under the same employment contract conditions until the final conclusion of the dismissal protection proceedings.
24
The defendant requests
25
reject the complaint.
26
The defendant took the view that the plaintiff should be given a negative health prognosis. In view of the burden of continued payment of wages, continued employment was no longer reasonable.
27
The bEM had been properly initiated. The annexes mentioned were attached.
28
The works council had been duly consulted. The list of absences was also presented to the works council.
29
In its judgment of November 19, 2020, the labor court determined that the employment relationship was not terminated by the dismissal at issue. The defendant was sentenced to continue employing the plaintiff. The labor court excluded individual absences from the ability to forecast and came to the conclusion that the remaining slight exceeding of the six-week period of incapacity to work per calendar year was not so serious as to justify an unreasonableness of the plaintiff's continued employment. In any case, it is not convinced that a decrease in absenteeism that is already in the offing can not be continued.
30
This judgment was served on the defendant on November 30, 2020. The present appeal of the defendant, which was received by the regional labor court on December 22, 2020 and was justified on February 26, 2021 within the period of justification extended to March 1, 2021, is directed against this.
31
The defendant considers the judgment erroneous.
32
She believes that the plaintiff's illness due to impingement syndrome in 2017 should not have been excluded from the prognosis assessment. The decrease in absenteeism assumed by the labor court is not recognizable in fact.
33
The defendant requests:
34
The judgment of the Reutlingen Labor Court of November 19, 2020 (1 Ca 108/20) is amended.
35
The charges get dismissed.
36
The plaintiff requests
37
to dismiss the appeal.
38
He defends the judgment of the labor court by repeating and deepening his arguments of the first instance.
39
Due to the further details of the factual and disputed situation, according to § 64 paragraph 6

 ArbGG in connection with Section 313 (2) sentence 2 ZPO refers to the content of the pleadings exchanged between the parties together with attachments and to the minutes of the oral hearing.
Reasons for decision

40
The admissible, formally and timely filed and justified and otherwise admissible appeal of the defendant is not justified.
I
41
The labor court has at least rightly upheld the action for protection against dismissal.
42
The employment relationship between the parties was not terminated by the disputed termination. The termination is not socially justified iSd. Section 1 (2) KSchG.
43
1. The effectiveness of an ordinary termination based on frequent brief illnesses initially requires a negative health prognosis. At the time of termination, there must be objective facts that give reason to fear further illnesses to the same extent as before. Frequent brief illnesses in the past can indicate a corresponding future development (first stage). The predicted absences are only suitable to justify a dismissal due to illness if they lead to a significant impairment of operational interests. In addition to operational disruptions, economic burdens, for example due to the expected continued payment of wages exceeding a period of more than six weeks per year, can lead to such an impairment (second stage). If this is the case, it must be checked as part of the necessary balancing of interests whether the impairments no longer have to be accepted by the employer (third stage) (BAG April 24, 2018 - 2 AZR 6/18 -; BAG July 16, 2015 - 2 AZR 15/15 -; BAG November 20, 2014 - 2 AZR 755/13 -).
44
2. The plaintiff can be given a negative health prognosis at the first stage.
45
a) In 2016, the plaintiff was ill and unable to work for a total of 31.7 working days. The plaintiff made no submissions regarding the diagnoses on which these absences were based or their healing. Insofar as diseases due to lumbar disc damage, radiculopathy, tonsillitis, chronic obstructive pulmonary disease and gastroenteritis/colitis result from the diagnosis list submitted by the health insurance company, it is not clear why these diseases should be cured permanently and without the possibility of recurrence.
46
b) It can be assumed in favor of the plaintiff that the illness has healed due to an impingement syndrome. In any case, such a clinical picture did not appear again later, which would at least be atypical if it were due to wear and tear. Even after deducting the 14 days of incapacity for work, 37 days of incapacity for work remained foreseeable in 2017. Resigning from the other absences that are essentially due to respiratory diseases or diseases due to gastritis/colitis is out of the question. They are at least eligible for consideration with regard to general susceptibility to disease.
47
c) In 2018, the only absences were due to respiratory diseases or gastritis/colitis. All 42 days of absence can be taken into account.
48
d) Four working days can be deducted from the absences in 2019 for the forecast due to a bruised wrist. This is a one-time, closed event. In favor of the plaintiff, it can also be assumed that the two days of absence due to gout cannot be predicted. Then there were still 37 missing days. The other absences due to respiratory diseases and gastritis/colitis remain predictable.
49
e) Contrary to the plaintiff's opinion, the prognosis assessment should not be based rigidly on the period of the last three years before receipt of the notice of termination. Rather, longer periods of time can also be included (BAG November 20, 2014 - 2 AZR 755/13 -). In summary, it can be stated that even adjusted, there were around 37 days of absence per year in the last four years before the notice of termination was given, and even around 38.5 days of absence in the last three years. In view of the 37 days of absence that can be taken into account in 2019, contrary to the opinion of the labor court, there can be no talk of a decreasing trend.
50
3. In the case of the defendant, these absences lead to significant impairments to operational interests on the second level. Based on this forecast, the defendant must continue to expect significant burdens of continued payment of wages, which go beyond the reasonable six-week limit. In fact, all absences in the past were also charged with continued payment of wages.
51
4. However, within the framework of the necessary balancing of interests on the third level, the termination proves to be not socially justified. She is disproportionate. The defendant did not properly initiate such a bEM despite the need to carry it out.
52
a) The following principles are to be assumed here.
53
aa) The implementation of the bEM is not a formal prerequisite for the effectiveness of a termination. However, Section 84 (2) SGB IX is not just a program statement. The standard specifies the principle of proportionality. With the help of the bEM, it may be possible to identify and develop milder means than termination. It is possible that a bEM that was actually carried out could not have produced a positive result. In such a case, the employer must not suffer any disadvantage from the fact that he has failed to do so. If the employer wants to invoke this, he has to explain the objective uselessness of the bEM and, if necessary, prove it. To do this, he must explain comprehensively and in detail why neither further use at the previous workplace nor its adaptation or change to suit the suffering were possible and the employee could not be used at another workplace with a changed activity, so why a bEM in none case could have helped to prevent renewed sick leave and to maintain the employment relationship. If, on the other hand, it is conceivable that a bEM produced a positive result, i.e. the joint search for measures to reduce absenteeism would have been successful, the employer must regularly be accused of having terminated "prematurely" (BAG November 20, 2014 - 2 AZR 755/13 -).
54
bb) A bEM can be carried out in various ways. Section 167 (2) SGB IX prescribes neither specific measures nor a specific procedure. The bEM is a legally regulated "search process" that is open-ended and open to results, which is intended to identify individually tailored solutions to avoid future incapacity to work. However, certain minimum standards can be derived from the law. One of these is to involve the bodies, offices and people provided for by law and to work with them to seriously try to clarify the goals of the bEM. The aim of the bEM is to determine the health restrictions that have caused the downtime to date and to find out whether there are options for reducing them in the future through certain changes in order to avoid termination. It is up to the employer to take the initiative to implement the bEM. During the implementation, he must consult an existing company interest group, provided that the employee agrees. If it depends on whether the employer has taken such an initiative, this can only be assumed if he has previously informed the employee of the objectives of the bEM and the type and scope of the data collected in accordance with Section 167 (2) sentence 3 SGB IX . The notice requires a description of the goals, which goes beyond a mere reference to the provision of § 167 Para. 2 Sentence 1 SGB IX. These goals include clarification of how the inability to work can be overcome as far as possible, how to prevent renewed incapacity for work and how the employment relationship can be maintained. It must be made clear to the employee that this is about the basics of his continued employment and that an open-ended procedure should be carried out in which he can also make suggestions. In addition, a note on data collection and data use is required, which makes it clear that only data that is required to be known in order to be able to carry out a targeted bEM that serves to recover and maintain the health of the person concerned is collected. The employee must be informed which illness data - as sensitive data iSv. Art. 9 Para. 1, 4 No. 15 DSGVO - collected and stored and to what extent and for what purposes they are made accessible to the employer. An attempt to properly carry out a bEM can only be said to have been carried out if appropriate information has been provided (BAG November 20, 2014 - 2 AZR 755/13 -).
55
cc) With regard to the required information on data collection and data use, the following must also be taken into account:
56
The clarification of possibilities for ending current and avoiding new incapacity for work as well as for maintaining the job is only possible if the actors involved have as much information as possible about the initial situation. Therefore, capturing this initial situation is an essential part of a bEM. It should be noted, however, that the legitimate interests of the employee can speak against a comprehensive collection of information. Not least because it is usually about special categories of personal data iSd. Art. 9 EU-DSGVO, in particular health data according to Art. 4 No. 15 EU-DSGVO, the obligations of the employer also include compliance with data protection. The observance of data protection is enshrined in § 167 Para. 2 SGB IX, but nevertheless expressly stipulated. Their necessity also results from the special area of tension between the interests that are already largely legally regulated, in which the bEM is necessarily located. These are, in particular, the employer's interest in knowing all information relevant to the employee's performance and the employee's interest in maintaining his job even with health restrictions. In general, compliance with data protection requirements is essential for trusting and effective cooperation within the framework of the bEM (FRR/Ritz/Schian SGB IX § 167 para. 29 and 30).
57
The following guidelines must be observed when organizing data protection. The employer - and based on the legal concept of § 35 Para. 1 Sentence 3 SGB I any other person who can make personnel decisions - may only have access to such data without the express consent of the person concerned, which is necessary to prove the fulfillment of the obligation to bEM are required or without which he cannot give his consent to planned measures etc. Diagnoses and similarly sensitive data must not be accessible to the employer without the express written consent of the person concerned (FRR/Ritz/Schian SGB IX § 167 para. 44a and 45).
58
b) If these principles are applied, it cannot be assumed that the bEM procedure will be properly initiated.
59
aa) An initiation of a bEM was required according to § 167 paragraph 2 sentence 1 SGB IX. Within the year before the notice of termination was given, the plaintiff was ill and unable to work for 37 working days, i.e. for more than six weeks (repeatedly).
60
bb) There are no doubts as to the correctness of the letter of invitation itself.
61
cc) Whether the information sheet on data collection and data use was attached to the letter of invitation, as claimed by the defendant, remains to be seen. A collection of evidence about this could be omitted.
62
dd) Because even if one wanted to assume that the information sheet should have been sent to the plaintiff together with the letter of invitation, the requirements for proper information about the use of the data would not be met.
63
(1) The adjudicating chamber (LAG Baden-Württemberg July 28, 2021 - 4 Sa 68/20 -) has already stated as follows in another case, also concerning the defendant, regarding the information letter at issue here:
64
In the present case, the defendant tried in the "Privacy Policy" to obtain consent from the plaintiff (here: the plaintiff) not only for the "collection" and "use" (also) of health data, but also for "disclosure" according to the first paragraph. of this data to the "superior" and the "site management". The consent to the "disclosure" of health data to the "superior" may perhaps be interpreted restrictively, so that this should only apply if the superior was consulted as a participant in the company integration team (BET). In the attached letter of reply, the plaintiff (here: the plaintiff) could have ticked such an involvement of the superior. On the other hand, there is no comprehensible reason for “notification” of all disclosed health data (in particular diagnoses) to the site management. Here it is sufficient if the employer knows which restrictions he has to take into account in the event of a necessary reorganization of workplaces. He does not need to know the diagnosis on which this limitation is based. It cannot be ruled out that an employee may also want to voluntarily give his health data to the site manager who is not involved in BET within the meaning of Art. 9 Para. 2 a; 7 EU GDPR. In this case, however, it must be made particularly clear to the employee that this part of the consent is only voluntary because it is not required for the purposes of implementing the bEM, compare Art. 7 Para. 4 EU-DSGVO. That is not the case here.
65
The Chamber stands by this.
66
(2) This does not change either, because according to the defendant's additional submissions, the letter of invitation and the information on data collection and data use should be read in connection with the BV-bEM. As a starting point, the plaintiff was only informed in the letter of invitation that the bEM would be carried out with members of the BET. For this purpose, the plaintiff is said to have been sent an attachment with a list of BET members. However, this list only contained the names of employees in the human resources department, members of the works council and the representative body for the severely disabled, the company doctors and the employees of the social counseling service. The site manager was not named on this list. According to No. 3.2 of the BV-bEM, if adjustments to the workplace, process or the

conditions are required, with the consent of the employee, a so-called integration team can also be called in to the bEM with an expanded group of participants compared to the BET, which among other things includes local site management. However, this expansion option is not mentioned in the letter of invitation. The plaintiff could therefore not have seen from the letter of invitation that the "disclosure" of his health data to the location management, as mentioned in the data protection notice, should only take place with an additional consent to an extension of the procedure and only within the bEM procedure and its purpose. On the contrary, based solely on the data protection notification, he had to assume that his health data, in particular his diagnoses, could possibly be made known to the site management, although they were not involved in the procedure at all. Such an inadequate description of the initial situation would at least have been suitable for allowing an employee - including the plaintiff - to refrain from voluntary participation in the bEM in consideration of his data protection interests. This potential misconception cannot be bridged because BV-bEM was named in the subject of the invitation letter. Employees are not required to read a company agreement named in the subject line in addition to the express letter of invitation in order to eliminate any irritations and ambiguities.
67
(3) The chamber had to consider the insufficient introduction of the bEM in the procedure, although the plaintiff did not complain that the information was incorrect in terms of content, but only denied access to the information letter about the data collection and use. It may be unfortunate for the defendant that the submission of the data protection notice was only necessary in the process because the plaintiff denied its access at all and it was therefore necessary to know which letter was supposed to have been received in order to gather evidence about the access. By submitting the letter, however, it became the subject of the proceedings and the defendant's case. However, this court case then had to be examined for all possible reasons, taking into account the subject matter of the dispute. All that was required was a legal notice from the court in accordance with § 139 ZPO (BAG December 13, 2012 - 6 AZR 5/12 -). This notice was given at the appeal hearing.
68
c) In the present case, it cannot be ruled out that if the plaintiff had been properly informed about the bEM, the plaintiff would have taken part in such and possibilities would have been found in the course of the procedure to reduce the plaintiff's absenteeism. In any case, the defendant has not shown that a bEM would have been unnecessary in this case.
II.
69
The plaintiff prevailed in the grandfathering dispute. It thus outweighs its interest in employment over the conflicting interests of the defendant. The plaintiff is therefore entitled to a general right to continued employment.
III.
70
1. The decision on costs is based on Section 97 (1) ZPO.
71
2. The appeal was to be allowed for the defendant according to § 72 Abs. 2 Nr. 1 ArbGG because of fundamental importance.
</pre>