ArbG Kaiserslautern - 4 Ca 488/21

ArbG Kaiserslautern - 4 Ca 488/21
Court:	ArbG Kaiserslautern (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(f) GDPR § 1004 (1) BGB § 823 Abs. 1 BGB Art. 1 GG Art. 2 GG
Decided:	25.01.2022
Published:	31.08.2022
Parties:	Employee Care Service
National Case Number/Name:	4 Ca 488/21
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	openJur (in German)
Initial Contributor:	n/a

The Labour Court of Kaiserslautern held that a former employer has to cease and desist from contacting prospective future employers of a former employee regarding their misconduct as their claims did not meet the threshold of Article 6(1)(f) GDPR.

English Summary

Facts

Plaintiff A is a former employee of defendant C.

Defendant C accuses plaintiff A of a series of misconducts in connection with their employment, namely: (1) to have made false statements when concluding their emplyoment contract, (2) to have breached data protection regulations by having her husband draw up the duty roster and, thereby, providing an unauthorized person access to the personal data of other employees, (3) to have instructed other employees to provide care services to clients beyond the allowed limited field of acivity of said employees, (4) to have repeatedly postponed appointments with new clients without reason, and (5) to have stopped working for several afternoons without permission to pursue private activites.

Plaintiff A disputes these assertions and claims that after the termination of the employment relationship between plaintiff A and defendant C, defendant C made an active effort to contact potential future employees of plaintiff A to inform them of the disputed misconducts and is filing for injunctive relief.

Holding

The court ordered the defendant to cease and desist from actively approaching potential future employers of the plaintiff to make their claims. It pointed out that both the protection of personality guaranteed by Article 1 and 2 of the German basic law as well as the legal basis for the processing of personal data of Article 6(1)(f) GDPR (the legitimate interests of a data controller or a third party) require a balancing of interests between (1) the rights of a former employer to provide information to a new employer about the performance and conduct of a former employee and (2) the personality and data protection rights of an employee.

It held that while in principle employers are entitled to forward information regarding the employee's performance and conduct, none of the claims, to the extent that they were substantiated by defendant C, met the necessary proportionality threshold of the German basic law and the GDPR to entitle defendant C to actively contact potential future employers of plaintiff A.

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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.

1. The defendant is sentenced to refrain from actively approaching potential future employers of the plaintiff and claiming that

- the plaintiff made false statements to the defendant when the employment contract was concluded on the occasion of the employment relationship between the parties, which had ended in the meantime, and in particular untruthfully claimed that she was still employed by the nursing service K in B-Stadt at the time of the application, which was not true and itself the plaintiff thus tricked the conclusion of an employment relationship with the defendant,

- the plaintiff, in violation of data protection regulations, had her husband M. A., who was not authorized to gain knowledge of the personal data of the defendant's employees, draw up the duty roster for other employees that she owed to the defendant,

- during the employment relationship with the defendant, the plaintiff instructed female employees to provide care services for various customers, although these female employees were only allowed to provide everyday support services, although the plaintiff was aware of this limited field of activity of the female employees commissioned by her,

- During the period of employment with the defendant, the plaintiff stopped work for several afternoons without permission, drove home or pursued other private activities.

2. Otherwise the action is dismissed.

3. The plaintiff will bear 20% and the defendant 80% of the costs of the legal dispute.

4. The amount in dispute is set at EUR 10,000.00.

5. The appeal is allowed.
facts

The parties are arguing about claims for injunctive relief based on statements made by the defendant's managing director to the plaintiff's new employer.

The plaintiff was employed by the defendant from February 15, 2021 to May 2021. The defendant accuses the plaintiff of various misconduct in connection with this activity and its initiation, the details of which are disputed.

After the plaintiff had started an employment relationship with a new employer, C P, the defendant's managing director, Mr H, called this new employer on June 1st, 2021 and made the following statements about the plaintiff: The CV has a false information regarding the plaintiff's previous employment. She stated that she was still employed at the time of the interview, but had been unemployed since September 30, 2020. It made her look better than she was. The plaintiff was not able to draw up a roster herself and needed outside help. In doing so, she committed a serious breach of data protection by sending confidential data to a third party. The plaintiff had instructed other employees to provide care services in the legal sense, although only so-called everyday services were allowed to be provided. Specifically, she ordered a customer to be fed and degummed, which was forbidden. The plaintiff was absent from work for several afternoons without an excuse and devoted herself to private matters.

With the present lawsuit, the plaintiff requests that the defendant refrain from making such and other statements.

The plaintiff argues that she is entitled to the defendant refraining from making the statements which are the subject of the complaint. This follows from the fact that the defendant is not at all entitled to inform new employers about the behavior of the plaintiff at the defendant - in particular without them even asking - regardless of whether and, if so, which misconduct the plaintiff is guilty of to let. In addition, the allegations are also unfounded. It is incorrect that at the time of the applicant's interview with the defendant, the employment relationship with nursing service K in B-Stadt had not existed for a long time. The plaintiff was simply ill and unable to work for a long time, with the employment relationship continuing in the background. Ms D, who was named as a witness, was unknown to the plaintiff. The plaintiff also did not commit any data protection violations. The duty roster was partly drawn up by the plaintiff's husband due to overwork, although the duty roster itself did not contain any names. The plaintiff was particularly shocked by the accusation that she "feeding a patient bananas, etc." ordered. The plaintiff lives a Christian image of humanity and has the utmost respect for patients, people in need of care, etc., so that the term "feeding" in connection with human life is taboo for the plaintiff simply because of this view of life. The plaintiff was also not absent from work without an excuse. You have always kept all arranged appointments.

The plaintiff is now applying (after adapting the applications according to the instructions of the court, p. 78 of the file),

to order the defendant to refrain from actively approaching the plaintiff's potential future employers and to allege that

- the plaintiff made false statements to the defendant when the employment contract was concluded on the occasion of the employment relationship between the parties, which had ended in the meantime, and in particular untruthfully claimed that she was still employed by the nursing service K in B-Stadt at the time of the application, which was not true and itself the plaintiff thus tricked the conclusion of an employment contract with the defendant,
- the plaintiff, in violation of data protection regulations, had her husband M. A., who was not authorized to gain knowledge of the personal data of the defendant's employees, draw up the roster she owed to the defendant for other employees,
- during the employment relationship with the defendant, the plaintiff instructed female employees to provide care services for various customers, although these female employees were only allowed to provide everyday support services, although the plaintiff was aware of this limited field of activity of the female employees commissioned by her,
- the plaintiff repeatedly postponed appointments with new customers interested in the defendant's services without any objective reason, which led to the prospective customer jumping out and in this respect also to considerable economic damage on the part of the defendant and
- During the period of employment with the defendant, the plaintiff stopped work for several afternoons without permission, drove home or pursued other private activities.

The defendant requests

reject the complaint.

The defendant submits that it is already not authorized to act. Since her managing director made the statements that were the subject of the complaint, he was the right respondent, not her. However, her managing director was also entitled to make the statements that were the subject of the complaint. The defendant or Mr H would have had a legitimate interest in the disclosure of the actions of the plaintiff. Mr. H's only concern was to protect the new employer and its customers from harm, after he had been shown how the plaintiff had endangered the customers and the license or the defendant's reputation. In particular, the allegations made are also correct. The first allegation that the plaintiff falsely stated that she was employed by another employer, the company Ambulante Kranken- und Altenpflege K, owner: K, B-Stadt, is true. In fact, at the time of the interview, contrary to what was stated in the CV, there was no longer an employment relationship with the previous employer, but the employment had already ended on September 30th, 2020. It is unusual in this industry and with the plaintiff's (formal) qualifications to be unemployed for so long without being able to justify this break objectively, e.g. due to illness, taking on the care of a relative or similar. This would have unequivocally indicated that the defendant did not voluntarily give up the previous employment relationship. The defendant would not have entered into an employment relationship with the plaintiff if the circumstances had been truthfully stated. It also turned out that other parts of the plaintiff's curriculum vitae were wrong. The witness Mrs. D stated that she knew the plaintiff. She worked with the plaintiff at the "SeniorenPark H" care center from around 2013 to 2016. There, too, she committed such gross breaches of duty that her employment ended with her being dismissed and actively escorted out the door. The plaintiff concealed this station of more than three years in her curriculum vitae. It can therefore be assumed that other stations also do not correspond to reality. The second assertion is also true.

The defendant subsequently determined by evaluating the company e-mails that the plaintiff - apparently due to a lack of technical qualifications - did not create the roster herself, but had it created by her husband, Mr MA. She therefore sent the defendant's other employees and customers' confidential data to her husband via his third-party business e-mail address. He processed the data. The plaintiff also sent the finished work to her own private e-mail address. The third claim is also true. The plaintiff instructed the former employee, Ms. V, to provide real care services for at least one customer, Mr. S, although the employees, as the plaintiff knew, only provided so-called low-threshold care ("everyday support") according to §§ 45a ff. SGB XI. In particular, the plaintiff ordered the feeding of a banana, repositioning in bed and decongestion. However, these are real care services that do not fall under the range of services offered by the defendant. Furthermore, it was even known that Mr S suffered from swallowing difficulties, which is why it was even potentially life-threatening to offer services such as feeding. The plaintiff not only knowingly violated her legal obligations, but also seriously endangered the defendant and her admission as an everyday companion.

The fourth assertion is also true. The plaintiff stopped working for many afternoons without permission and drove home or pursued other private activities, falsely claiming that she had external appointments. This emerges from the recordings of the service cell phone.
reasons

A

The lawsuit is mostly well founded and partially unfounded. The plaintiff has a claim against the defendant to stop the statements actually made, at least if they are made in a conversation actively sought by the defendant. The lawsuit is only unfounded insofar as it is partially disputed and it has not been proven that a statement actually took place.

I

The lawsuit is well founded with regard to the statements mentioned in indents 1, 2, 3 and 5 of the complaint.

1.

The basis of the claim for injunctive relief is the general civil law claim according to Section 1004 Paragraph 1 in conjunction with Section 823 Paragraph 1 BGB, according to which the omission of the repetition of statements can be demanded if the original statements were inadmissible and the risk of repetition is not, for example by submitting a declaration of discontinuance, was eliminated (see fundamentally only BAG dated 02/08/1984 - 5 AZR 501/81, NZA 1984, 225; BAG dated 08/26/1997 - 9 AZR 61/96, NZA 1998, 712).

a) The legal starting point is the protection of personality guaranteed by Art. 1 and Art. 2 GG. Personal rights are treated as other rights i.S. protected from objectively unlawful interventions by Section 823 (1) of the German Civil Code. The object of this right is respect for the individual personality, particularly in the sense of being left alone. Although the claim for injunctive relief is not mentioned as a legal consequence of an unlawful act, it is recognized in the corresponding application of § 1004 Para. 1 BGB (see only BAG of August 26, 1997 - 9 AZR 61/96, NZA 1998, 712 with further references).

b) Whether these principles mean that a former employer is not allowed to provide any information about the performance and behavior of a former employee to a new employer, or whether the former employer is completely free to provide (truthful) information, or whether a weighing of interests has to take place , and whether it may have an effect whether the former employer is asked by the new employer or whether the former employer actively approaches the new employer has - as far as can be seen - not yet been clearly decided by the highest court.

c) In principle, however, case law is based on the following principles. The general right of personality guaranteed by Articles 1 and 2 of the Basic Law not only protects the employee against excessive monitoring and investigation of his personality, but also includes protection against the disclosure of personal data, including data from which the employer has legitimately disclosed has gained knowledge. However, the right to informational self-determination is not unlimited. Where the limit of an inviolable area of private life and information ends is determined in each individual case according to the principle of proportionality. According to this, encroachments on personal rights can be justified by protecting interests that are predominantly worthy of protection. In this respect, it is necessary to weigh up goods and interests in individual cases in order to clarify whether the personality rights of one person are offset by the interests of others that are equivalent and worthy of protection (BAG of 04/04/1990 - 5 AZR 299/89, NZA 1990, 933; BAG of 11/16/2010 – 9 AZR 573/09, NZA 2011, 453). The employer may also provide information against the will of the employee who has left the company. In principle, he cannot be prevented from supporting other employers in safeguarding their interests. However, this freedom does not go so far as to justify the transfer of parts of employees' personnel files to third parties.

The information to which the employer is entitled relates only to the performance and conduct of the employee during the employment relationship (BAG of December 18, 1984 - 3 AZR 389/83, NJW 1986, 341).

d) The adjudicating chamber agrees with these principles – also against the background of recent developments such as, in particular, the further development of data protection law. According to this, the former employer is not entirely prohibited from providing new (potential) employers of former employees with information about the performance and behavior of these former employees. However, such a provision of information is subject to a weighing up of the different interests of the employee, the new employer and the old employer. The outer limits are that the information provided must be true and the provision of information can only be justified if the new employer has a legitimate interest in the information. A weighing of interests must then be carried out within these outer limits. In particular, it must be taken into account that the right to informational self-determination is paramount, so that important interests of the (old or new) employer are required for such a provision of information to be permissible. It must also be taken into account whether the new employer approaches the old employer and is already declaring an interest in the information, or whether the old employer is actively contacting the new employer. In the latter case, a stricter standard must therefore be applied. Finally, evaluations of the law on protection against dismissal can also be used. It is therefore reasonable to assume that misconduct on the part of an employee that would not be sufficient to justify a termination and thus jeopardize an existing employment relationship, is also not sufficient to provide information - at least unsolicited - that a person has just received established or not yet established employment relationship is endangered.

e) These considerations are also confirmed by the assessments of data protection law. It can remain open whether the provisions of the GDPR and the BDSG are applicable to the present case, in particular whether "completely or partially automated processing of personal data" or "non-automated processing of personal data that is stored or should be stored in a file system " within the meaning of Art. 2 Para. 1 DSGVO or whether § 26 BDSG is applicable according to § 26 Para. 7 BDSG, since "personal data, including special categories of personal data, are processed by employees without being stored in a file system are or should be stored", as well as whether data is processed for the purposes of the employment relationship within the meaning of Section 26 (1) BDSG. Because even then, the provision of information according to Art. 6 (1) (f) GDPR would be permissible after a corresponding weighing of interests, specifically if the processing is "necessary to safeguard the legitimate interests of the person responsible or a third party", "unless the interests or Fundamental rights and freedoms of the data subject, which require the protection of personal data, prevail". The application of Art. 6 (1) (f) GDPR is also not excluded under Section 26 BDSG, regardless of whether data processing is for the purposes of the employment relationship within the meaning of Section 26 (1) BDSG, since Section 26 BDSG merely represents a specification of Art. 6 (1) lit. b) GDPR possible according to Section 88 (1) GDPR, in addition to which the other permissions of Art. 6 (1) GDPR continue to apply (ErfK/Franzen, Section 26 BDSG, Margin 4; BeckOK data protection law/Riesenhuber, § 26 BDSG, margin 32a).

2.

Measured against these principles, the plaintiff has a right to omission of the statements actually made, namely the statements mentioned in indents 1, 2, 3 and 5 of the complaint.

a) The defendant has passive legitimacy for the present claim. The actions of its managing director are to be attributed to the defendant. If a managing director of a GmbH acts for these statements, the claim for injunctive relief is directed at least (if not even with priority or exclusively) against the company (cf. on the case of enforcement from a cease-and-desist order obtained against the company and managing director: BGH of January 12, 2021 - I ZB 43/11, ZIP 2012, 1431, according to which only the legal entity is to be claimed). In the present case, the managing director of the defendant also acted as the managing director of the defendant. In any case, the defendant also does not claim that its managing director called the new employer of its former employee as a private person.

b) For the statements mentioned in the operative part, namely the statements mentioned in indents 1, 2, 3 and 5 of the complaint, there is also a risk of repetition. It is undisputed that the defendant's managing director made these statements. The defendants (page 52 of the file) formulated the statements slightly differently than the plaintiffs in their applications (page 2 of the file). Insofar as relevant deviations were included, this was taken into account by adapting the applications (page 79 of the file). The remaining differences concern only details of the wording, but no longer any differences in substance. The risk of repetition has also not disappeared. In particular, the defendant has not submitted a cease-and-desist declaration.

c) In the present case, in the opinion of the adjudicating chamber, the balancing of interests to be carried out according to the above-mentioned principles leads to the fact that none of the four statements actually made was justified, so that there is a claim for injunctive relief in each case.

aa) Insofar as the defendant accuses the plaintiff of having given false information in her CV, these are in any case deviations that are so small that they are not so serious that an employer has an interest in these details to be informed could prevail within the framework of a balancing of interests. Because even without these details, it is clear from the plaintiff's curriculum vitae (page 57 of the case file) that she had constantly changing employers and sometimes gaps in between. As a result, it can remain open on the one hand whether serious mistakes in the CV could justify informing potential other employers. On the other hand, it can remain open whether the information in the plaintiff's curriculum vitae is incorrect at all and whether the plaintiff's denial is sufficiently substantiated in this respect.

bb) Insofar as the defendant accuses the plaintiff of having committed data protection violations when creating rosters, in particular by having her husband (who is not employed by the defendant) create these rosters, this is also not a case of misconduct that would be suitable to outweigh the plaintiff's interest in her informational self-determination as part of a weighing of interests. If there was actually a breach of data protection (which is doubtful, since it was disputed by the plaintiff and the defendant neither substantiated nor proved it), it would have been necessary to point out to the plaintiff (possibly in the context of a warning) that their behavior does not comply with data protection. Only in the event of another violation after such a notification would it be conceivable that the violation would be so serious that it would be justified to inform a (potential) new employer about it.

cc) Insofar as the defendant accuses the plaintiff of having instructed other employees to carry out tasks that they (and also the defendant in general) were not allowed to carry out, this is ultimately not misconduct that is suitable in the concrete constellation at hand would be to outweigh the plaintiff's interest in her informational self-determination within the framework of a weighing of interests.

However, with this accusation by the defendant, it must be admitted that it is (if the accusation is correct, although it is unclear whether the plaintiff wants to dispute the core of the accusation itself or only the specific choice of words) is a not exactly insignificant misconduct. Because the correct provision of care services by trained and appropriately authorized personnel is in fact a sensitive area in which misconduct cannot be taken lightly due to the associated dangers to life and limb of those being cared for.

Nevertheless, in the opinion of the adjudicating chamber, the weighing up of interests results in a preponderance of the plaintiff's interests in the case of this allegation as well. The decisive factor here is primarily that – at least the defendant does not allege otherwise – it was at most a one-off misconduct on the part of the plaintiff, which ultimately did not lead to any damage. Just as such an isolated incident could not justify a dismissal, it can ultimately justify an overriding interest of the defendant or the new employer in the information.

dd) To the extent that the defendant accuses the plaintiff of absenteeism from work without an excuse, it is also doubtful whether this accusation would justify informing the new employer. In any case, this accusation is unsubstantiated. The allegation was denied by the plaintiff. In particular, she stated that she always kept all her appointments.

It would have been up to the defendant to substantiate when exactly the plaintiff did not keep which appointments or which assigned work was not done and when. However, the defendant did not make such a submission.

II.

With regard to the statement mentioned in indent 4 of the complaint, the complaint is unfounded. Because in this respect there is no right to injunctive relief, since there is already no risk of repetition. The plaintiff claimed that the defendant's managing director made this statement in a telephone call on June 1st, 2021. However, this was disputed by the defendant. This denial was not expressly made, but it follows from the fact that the defendant listed the statements made by the managing director (page 52 of the case file), the statement mentioned in indent 4 of the complaint was not included and it follows that the Defendant thus expresses that the managing director did not make this statement. The defendant also expressly confirmed this understanding when asked in the chamber hearing (page 78 of the case file). It would have been up to the plaintiff to prove that the defendant's managing director made the statement. Because for this assertion as the basis of the risk of repetition and thus the claim for injunctive relief, she bears the burden of proof. However, the plaintiff has already failed to provide such evidence.

B.

According to Section 61 (1) ArbGG, the amount in dispute is to be determined in the judgment. According to § 46 paragraph 2 in conjunction with §§ 495, 3 ff. ZPO, it amounts to 10,000.00 euros. In the absence of more precise indications, this amount appears appropriate for the legal dispute as a whole. Based on the value in dispute under Section 52 (2) GKG, the injunctive relief claim for a statement was generally assumed to be EUR 5,000.00 and this was doubled because several statements were disputed.

The decision on costs follows from Section 46 (2) sentence 1 ArbGG in conjunction with Sections 495, 92 (1) sentence 1. At the expense of the plaintiff, only the failure with one of five objected statements had to be taken into account, i.e. 20 percent. The decision on the appeal follows from Section 64 (3) No. 1 ArbGG. The question of whether and under what circumstances a former employer may of his own volition provide a new employer with information about former employees is – as far as can be seen – a legal question that has not yet been clarified and also affects a large number of cases.