ArbG Bonn - 5 Ca 663/24

ArbG Bonn - 5 Ca 663/24
Court:	ArbG Bonn (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(b) GDPR Article 6(1)(f) GDPR Article 82 GDPR § 26 Abs. 1 BDSG § 79a BetrVG
Decided:	20.11.2024
Published:	16.12.2024
Parties:
National Case Number/Name:	5 Ca 663/24
European Case Law Identifier:	ECLI:DE:ARBGBN:2024:1120.5CA663.24.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	justiz.nrw (in German)
Initial Contributor:	tjk

A court held, that 1. forwarding of chat traffic by a work council chairman to the HR of a company is lawful insofar it's relevant for examining a complaint and 2. work council members are not controllers when acting within their capacity.

English Summary

Facts

The data subject maintained an "on/off relationship" with a subordinate. After disputes arose, this subordinate sent excerpts of the WhatsApp-Chat traffic with the data subject to the works council chairman of the company they worked for. The chairman than forwarded this chat history containing highly intimate data to the human resources department (HR) which ultimately led to the termination of the data subject's employment.

The data subject argued, among other things, that there was no legal basis under Article 6 GDPR for this disclosure and that the forwarding was both a violation of data protection law and of his general personal rights therefore entitling him to €5,000 plus interest in non-material damages from the works council's chairman pursuant to Article 82(1) GDPR.

Holding

1. The labor court dismissed the data subject's claim, holding that the data transfer was lawful under Article 6(1)(b) and (f) GDPR and § 26(1) BDSG (Federal Data Protection Act) in order to provide the employer with the most meaningful basis for examining the complaint of the data subject's subordinate. The court argued, that the scope of Article 6(b) GDPR also includes the transfer of data for the execution and termination of the employment contract of the data subject and his subordinate for the examination of possible measures by the employer. The data subject had not provided evidence the transferred personal data was irrelevant for the examination of the subordinate's complaint.
2. Furthermore the court argued, that the data subject has not provided evidence that the works council chairman did not act in his capacity as a works council member when forwarding the data to the human resources department, meaning that he would not have been personally liable to the plaintiff for compliance with data protection law in any case. According to § 79a BetrVG (Works Constitution Act), the employer is the controller within the meaning of the data protection regulations insofar as the works council processes personal data in order to fulfill his tasks . The provision also privileges individual works council members in terms of data protection law, insofar as they - like the chairman - act in the exercise of the works council office. The claim under Article 82 GDPR, if it had existed at all, was directed against the controller or the processor, so in this case against the employer according to the statutory allocation of § 79a BetrVG.

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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.

Previous instance:

Bonn Labor Court, 5 Ca 663/24

Keywords:

§ 79a BetrVG, § 84 BetrVG, § 85 para. 1 BetrVG, § 7 para. 1 AGG, § 3 para. 3 AGG, § 13 AGG, Art. 1 para. 1 GG, Art. 2 para. 1 GG, § 823 para. 1 BGB, Art. 82 GDPR, Art. 6 para. 1 b), f) GDPR, § 26 para. 1 BDSG, § 2 para. 1 no. 9 ArbGG, § 32 ZPO

Subject area:

Labor law

Principles:

1. Within the scope of application of § 13 para. 1 AGG (employees’ right to complain in the event of possible discrimination), the person concerned can, for support or mediation, Involve a works council member (Section 84 (1) BetrVG). The individual complaint procedure must be legally separated from a collective complaint procedure that may be carried out in parallel in accordance with Section 13 (2) AGG, Section 85 (1) BetrVG.

2. Individual decision on the permissible disclosure of partly private correspondence by a works council member to the human resources department within the scope of Section 84 (1) Sentence 2 BetrVG, Section 13 (1) AGG.

3. If a works council member acts to support the conduct of an individual complaint in accordance with Section 84 (1) Sentence 2 BetrVG, Section 79a Sentence 2 BetrVG assigns data protection responsibility to the employer. A claim for damages against the works council member in accordance with Art. 82 (1) GDPR is excluded in this case.

1Facts
2The parties are disputing claims for damages due to an alleged data protection violation and an alleged violation of personal rights.
3Both parties were employees of C. SE. The plaintiff was employed as a sales manager with responsibility for twelve retail stores. The defendant was, among other things, chairman of the works council. From September 2022 to July 1, 2023, the plaintiff maintained what he described as an "on/off relationship" with Ms. N., a former employee of C. SE, whose supervisor he was. Disputes arose in the course of the relationship. The plaintiff and Ms. N. exchanged various WhatsApp messages. Ms. N. sent the defendant excerpts from the chat traffic, which the defendant passed on to the human resources department of C. SE. For further details, reference is made to Appendix B 6 to the written submission of September 12, 2024 (pages 110 - 114 of the file).
4The out-of-court assertion of a claim for damages in the amount of € 5,000.00 due to the plaintiff's assumed illegality of the forwarding to the HR department in a letter dated November 27, 2023 (Appendix 2 to the statement of claim dated April 12, 2024, pages 15 - 16 of the file) was unsuccessful. The defendant rejected the claims with further reasons in a letter dated December 7, 2023 (Appendix K 3 to the statement of claim dated April 12, 2024, pages 17 - 19 of the file).
5The plaintiff claims that he separated from Ms. N. amicably. After that, there were no relevant influences on Ms. N. Criminal proceedings have been discontinued.
6The plaintiff claims that the defendant forwarded the WhatsApp chat history containing intimate content relating to the most personal area of life and a criminal complaint to the human resources department of C. SE on August 14, 2023 without consulting the plaintiff immediately after receiving it and without - at least in accordance with the rules of procedure - involving the works council, the personnel committee, the works committee or works council members. This ultimately led to his release from his duties and the conclusion of a termination agreement. No case details were discussed at the meeting of the personnel committee on August 9, 2023 and the meetings on August 16, 2023 and August 22, 2023 had already taken place after the matter had been forwarded to the human resources department. The defendant falsely claimed to the works council's lawyer that the personnel committee had been properly involved. Before disclosure to the HR department, there was no correct decision on treating the complaint as an employee complaint and the defendant was not acting in his capacity as a works council member, which is why he could not invoke Section 79a of the Works Constitution Act. There was no legal basis under data protection law pursuant to Article 6 of the GDPR for the disclosure. The disclosure of the data was not necessary. The defendant's actions had massively damaged the plaintiff's reputation and his professional position. There was no official connection. He was shown private content from the chat history on his private cell phone that went beyond Appendix B 6, which the defendant forwarded to the HR department. He did not receive copies of these from the defendant despite an initial promise. The chat history contained untrue factual allegations and was created due to Ms. N.'s intention to injure the plaintiff. After the termination agreement had been concluded, Ms. N. spread the word within the company that she and the defendant had succeeded in getting the plaintiff promoted from the company. The forwarding was both a violation of data protection law and of the plaintiff's general personal rights, which, due to its significance, can only be adequately remedied with financial compensation of at least the amount requested.
7The plaintiff requests that
8the defendant be ordered to pay him €5,000.00 plus interest of five percentage points above the base interest rate since December 8, 2023.
9The defendant requests that
10the action be dismissed.
11The defendant claims that Ms. N. contacted the works council after the separation. On July 31, 2023, she wrote an email to the deputy chairwoman of the responsible works council and asked for support in connection with the plaintiff's behavior as her superior. Due to an out-of-office message she received, Ms. N. also wrote an email to the defendant on the same day. The defendant replied that Ms. N. could contact the works council by phone or email and that her request would be treated anonymously for as long as she wished. Only if she expressed specific wishes, for example if she wanted to lodge a complaint in accordance with Section 84 of the Works Constitution Act, could the works council also provide external support. He also asked for initial information on the facts.
12The defendant claims that Ms. N. told him about the relationship with the plaintiff after this initial contact. She wanted to limit contact with the plaintiff to work. The plaintiff told her that you need character to run a branch, which she does not have. The plaintiff also told her that she should leave the company by September 30, 2023, otherwise he would initiate disciplinary measures for anything that went wrong until he could ensure that Ms. N. had to leave the company. After the separation, there were repeated conversations during working hours, which initially focused on work, but then the separation was brought up and the plaintiff made personal accusations against her. The plaintiff also ambushed her several times against her expressed will and backed this up with a photo that he sent her. This frightened her. The plaintiff wanted to continue the relationship against her will and physically attack competitors. She did not know what to do because the plaintiff was her superior. She had looked for a new apartment and had become ill.
13The defendant claims that he met with Ms. N. for a personal conversation on August 9, 2023, during which Ms. N. gave him further information and gave him documents. These had a recognizable connection to the employment relationship, for example with regard to the reference to a possible promotion for Ms. N., a drive by the plaintiff in his company car despite alcohol consumption, the physical position of a possible competitor for Ms. N.'s favor to her apartment after a company party and subsequent insults. At the same time, she requested that these documents be forwarded to the employer so that they could protect her from stalking. The defendant then brought this information to the works council's personnel committee. As part of the case management, he was tasked with handling the complaint through the personnel committee and was able to act independently. He himself only forwarded the documents submitted as Appendix B 6 to the written submission of September 12, 2024 to the human resources department. The works council called in its lawyer, who advised forwarding them to the employer on August 22, 2023. The personnel committee discussed the matter three times, on August 9, 2023, August 16, 2023, and August 22, 2023. The defendant's approach was again approved by Ms. N. in an email dated April 24, 2024 on the occasion of the current proceedings. 14After the committee meeting, the works council informed Ms. N. that she could file a complaint in accordance with Section 84 of the Works Constitution Act. At the same time, the works council saw itself as having jurisdiction in accordance with Section 75 of the Works Constitution Act. Ms. N. again asked, making new allegations against the plaintiff, that the works council mark the documents in its possession as a complaint and forward them to the employer. The defendant then did this in the exercise of his works council duties by leaving the matter to the HR manager, Mr. X.
15For further details of the facts and the dispute, reference is made to the minutes of the conciliation hearing and the chamber hearing as well as to the parties' written submissions and attachments.
16Reasons for the decision
17I.              The action is admissible, but unfounded.
181.              The action is admissible.
19a)               Legal recourse to the labor courts is open pursuant to Section 2 Paragraph 1 No. 9 ArbGG. Both parties were employees of C. SE at the time of the alleged unlawful forwarding. The plaintiff asserts claims against the defendant in tort for a data protection violation and a violation of personal rights, which are related to the employment relationship at least with regard to the defendant's position as a works council member and the termination of the plaintiff's employment relationship that was at least partly triggered by this.
20b)              The Bonn Labor Court has local jurisdiction. Due to the subject matter of the dispute - claims arising from tort - a place of jurisdiction in the district of the Bonn Labor Court at the plaintiff's place of residence in L. is open as the so-called place of damage (Section 46 Paragraph 2 Sentence 1 ArbGG, Section 32 ZPO).
212.              The action is unfounded. The plaintiff has no claim to damages against the defendant and, in the absence of a principal claim, no claim to payment of interest.
22a)              The plaintiff has not demonstrated that the defendant had unlawfully violated his general personal rights by passing on private correspondence between him and Ms. N. to the human resources department and that this would have given rise to a claim for damages.
23(1)              The court presumes in favor of the plaintiff that the disclosure of private correspondence, despite the official remuneration, fell within the scope of his general personality rights under the aspect of safeguarding the protection of private life. Since the general personality rights are a framework right, the fact that an act of infringement constitutes an offense does not in itself indicate its illegality, unlike the other absolute rights within the meaning of Section 823 Paragraph 1 of the German Civil Code (BGB). The interest of the person concerned in being protected must outweigh the interests of the other side worthy of protection (BGH June 29, 2021 - VI ZR 52/18, paragraph 24; Förster in BeckOK-BGB as of August 1, 2024, Section 12, paragraph 288 with further references). The court therefore had to weigh up whether the interests of Ms. N. and the defendant, which spoke in favor of disclosing private correspondence to the employer, outweighed those of the plaintiff, which spoke in favor of keeping it confidential. The plaintiff had to explain and prove the illegality of forwarding the chat history and, if applicable, other data in order to successfully assert a claim for damages due to a violation of his general personality rights under Section 823 Paragraph 1 of the German Civil Code in conjunction with Article 1 Paragraph 1 and Article 2 Paragraph 1 of the German Basic Law.
24(2)              The plaintiff did not succeed in doing the latter. The correspondence available to the court (Appendix B 6 to the written submission of September 12, 2024) between the plaintiff as superior and his subordinate employee Ms. N. contains several references to Ms. N.'s employment relationship. Even if the core of the chat history is Ms. N.'s refusal to meet with the plaintiff, it also mentions applications and a career change. It must also be taken into account that the plaintiff was Ms. N.'s superior, which meant a subordination relationship affecting the private relationship with particular vulnerability to potential abuse of power by a man rejected by a woman. The chat history shows a significant and repeatedly rejected insistence by the plaintiff for a personal meeting with Ms. N. and thus a situation that, at least potentially, fell within the scope of Section 7 Paragraph 1, Section 3 Paragraph 3 AGG (harassment of employees) due to the plaintiff's professional connection with Ms. N. The plaintiff's persistent insistence, combined with the sending of a photo of her home after twice refusing to meet, triggered Ms. N.'s right to lodge a complaint with the joint employer through the plaintiff in accordance with Section 13 Paragraph 1 Sentence 1 of the General Equal Treatment Act. In this context, it must be taken into account that the right to complain in accordance with Section 13 Paragraph 1 of the General Equal Treatment Act does not only exist if the General Equal Treatment Act has actually been violated, but that it is sufficient if the employee - subject to abuse of the right to complain - believes that he has been discriminated against. Whether there was discrimination and, if necessary, remedial measures need to be taken can be clarified in the complaint procedure (Benecke in Beck Online Großkommentar Stand 01.10.2024 Section 13 General Equal Treatment Act Rn. 13; Schlachter in Erfurter Kommentar 25th Edition 2025 Section 13 General Equal Treatment Act Rn. 1). 25(3)              At the same time, Ms N. had a right of complaint under Section 84 Paragraph 1 of the Works Constitution Act. According to this provision, every employee has the right to complain to the relevant bodies within the company if they feel they have been disadvantaged, treated unfairly or otherwise impaired by their employer or employees. They can call on a member of the works council for support or mediation (Section 84 Paragraph 1 Sentence 2 of the Works Constitution Act). The same applies within the scope of the right of complaint under Section 13 Paragraph 1 of the General Equal Treatment Act, especially since if the complaint is submitted to a body that is not competent within the company, it must be forwarded to the competent body (Benecke in Beck Online Großkommentar as of October 1, 2024 Section 13 General Equal Treatment Act Rn. 11; Schlachter in Erfurter Kommentar 25th ed. 2025 Section 13 General Equal Treatment Act Rn. 3). The fact that the defendant accessed the chat history on his own initiative, i.e. The plaintiff did not claim that the defendant forwarded the information to the human resources department without Ms. N.’s request. The defendant provided Ms. N. with support in carrying out his statutory mandate under Section 84 (1) Sentence 2 of the Works Constitution Act.
26(4)               Pursuant to Section 13 (2) AGG, the rights of employee representatives remain unaffected by the individual right of complaint. This means that an individual complaint pursuant to Section 13 (1) AGG and Section 84 (1) BetrVG can easily be conducted in parallel with a collective complaint procedure pursuant to Sections 85 et seq. BetrVG (Trebinger/Linsenmaier/Schelz/Schmidt in Fitting BetrVG 32nd ed. 2024 Section 84 Rn. 1; Thüsing in Richardi BetrVG 17th ed. 2022 Section 84 Rn. 3, 30). Contrary to the plaintiff’s opinion, it is therefore not decisive for the dispute whether the defendant properly consulted the works council or the personnel committee with the complaint before – at Ms. N.’s request – forwarding the excerpts from the chat history to the human resources department. The discussions in the committees took place within the scope of Sections 85 et seq. of the Works Constitution Act. In any case, at Ms. N.’s request, the defendant was permitted to consult the relevant departments in the company with the matter at the same time and before the complaint procedure was completed, and thus also to submit the chat traffic there for review, which did not contain any information irrelevant to the assessment of a complaint in accordance with Section 13 Para. 1 AGG and Section 84 Para. 1 Works Constitution Act.
27(5)              The plaintiff did not claim that the human resources department of C. SE was not responsible if an employee felt harassed by her superior.
28(6)              There was no legal basis for the plaintiff to be heard before the defendant forwarded the matter. The plaintiff could also be heard during the appeal proceedings.
29(7)              The plaintiff has not demonstrated that the defendant forwarded communication content to the human resources department that went beyond Appendix B 6, was private and irrelevant to the appeal. According to Section 138 Paragraph 2 of the Code of Civil Procedure, each party must explain the facts alleged by the opponent. Facts that are not expressly disputed are to be regarded as admitted unless the intention to dispute them is apparent from the party's other statements (Section 138 Paragraph 3 of the Code of Civil Procedure). The duty to tell the truth (Section 138 Paragraph 1 of the Code of Civil Procedure), the principle of negotiation (Section 128 of the Code of Civil Procedure) and the duty to promote the proceedings (Section 282 of the Code of Civil Procedure) lead to a burden of explanation that corresponds to the opposing party's arguments. The opponent's specific statement can, in the interplay of presentation and counter-presentation, trigger an obligation for the party primarily responsible for presentation and proof to provide further substantiation (BGH March 8, 2021 - VI ZR 505/19, para. 26; BAG February 23, 2017 - 6 AZR 665/15, para. 25; BAG March 21, 2012 - 6 AZR 596/10, para. 31; Stadler in Musielak ZPO 21st ed. 2024 § 138, para. 10a). The defendant has stated that the forwarding was limited to the excerpts from the chat history submitted as Appendix B 6. The plaintiff did not object to this in detail. The allegations regarding the disclosure of intimate chat content that may be assessed differently and is possibly irrelevant to the complaint are general and not capable of being answered in more detail, so that there was no need to take evidence by questioning the HR manager Mr. X. Such a taking of evidence would have served to establish specific factual information for the first time. The submission of evidence was inadmissible investigative evidence (cf. BAG 25.03.2015 - 5 AZR 368/13 para. 23; Prütting in Germelmann ArbGG 10th ed. 2022 § 58 para. 38).
30(8)              As a result, the reasons for justifying forwarding the chat history to the HR department for the purpose of conducting the individual complaint procedure clearly outweighed the plaintiff’s interest in confidentiality. The defendant acted legally within the scope of Section 84 (1) Sentence 2 of the Works Constitution Act to support Ms. N..
31b)              The plaintiff is also not entitled to any claim for damages against the defendant under Article 82 (1) of the GDPR.
32(1)              According to this provision, any person who has suffered material or immaterial damage as a result of a violation of the GDPR is entitled to compensation from the controller or the processor. Taking into account the statements under a) (2) – (8), the specifically described data transfer was lawful in accordance with Article 6 (1) Sentence 1 b), f) of the GDPR and Section 26 (1) Sentence 1 of the Federal Data Protection Act in order to provide the employer with the most meaningful basis possible for examining the complaint in accordance with Section 13 (1) of the General Equal Treatment Act and Section 84 (1) of the Works Constitution Act. There is no violation of the GDPR by the defendant. The scope of Art. 6 Para. 1 b) GDPR also includes the transfer of data for the execution and termination of a contract (for details see Albers/Veit in BeckOK Data Protection Law as of August 1, 2024 Art. 6 GDPR Rn. 43), here in the form of the employment contract of the plaintiff and Ms. N. for the examination of possible remedial measures by the employer, in particular under the AGG. At least in view of the defendant’s denial and his factual submissions, the plaintiff has not specifically stated or provided evidence that highly personal data from his intimate area, which would have been irrelevant for an examination of the complaint, was forwarded to the human resources department without reason.
33(2)              Furthermore, the plaintiff has not explained or provided evidence that the defendant did not act in his capacity as a works council member in accordance with Section 84 Paragraph 1 Sentence 2 of the Works Constitution Act when forwarding the data to the human resources department, meaning that he would not have been personally liable to the plaintiff for compliance with data protection law in any case in accordance with Section 79a Sentence 2 of the Works Constitution Act. According to Section 79a Sentence 2 of the Works Constitution Act, the employer is the controller within the meaning of the data protection regulations insofar as the works council processes personal data in order to fulfil the tasks within its responsibility. The provision also privileges individual works council members in terms of data protection law, insofar as they - like the defendant here pursuant to Section 84 Para. 1 Sentence 2 BetrVG - act in the exercise of the works council office (Thüsing in Richardi BetrVG 17th edition 2022 Section 79a marginal no. 16; Kania in Erfurter Kommentar 25th edition 2025 Section 79a BetrVG marginal no. 3). The claim under Article 82 Para. 1 GDPR, if it had existed at all in principle, was directed against the controller or the processor, i.e. against the employer according to the statutory allocation of Section 79a BetrVG.
34II.              The decision on costs is based on Section 46 Para. 2 Sentence 1 ArbGG, Section 91 Para. 1 ZPO. As the losing party, the plaintiff must bear the costs of the legal dispute.
35III.               The value of the appeal was set at the nominal value of the claim in the judgment in accordance with Section 61 Paragraph 1 of the ArbGG and Sections 3 et seq. of the ZPO.
36IV.               There are no grounds for a separate admission of the appeal in accordance with Section 64 Paragraph 3 of the ArbGG.