LAG Baden-Württemberg - Sa 11/18

LAG Baden-Württemberg - Sa 11/18
Court:	Landesarbeitgericht Baden-Württemberg (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 15 GDPR
Decided:	20.12.2018
Published:	n/a
Parties:	anonymous
National Case Number:	Sa 11/18
European Case Law Identifier:	n/a
Appeal from:	Arbeitsgericht Stuttgart
Language:	German
Original Source:	Landesrechtsprechung Baden-Württember (GE)

The regional labour court of the Land Baden-Württemberg issued its decision on 20.12.2018, and present interesting developments regarding the right of access pursuant to Article 15 GDPR.

English Summary

Facts

The plaintiff was employed by an international group as head of the “Legal Mergers & Acquisitions” within the legal department. A longstanding labour dispute began. The plaintiff was assigned in various positions into a lower hierarchy and wage level as a result of an ineffective termination of the employment contract. During the conflict, the plaintiff received several warnings from its employer for improperly fulfilling his work and was finally dismissed.

However, what is important about this proceeding is that the plaintiff requests information according to Art. 15 GDPR. The right to information relates, among other things, to any correspondence about the plaintiff in parallel with the personnel file, and the inclusion of the plaintiff in internal 'negative lists'. This is of importance because a Business Practices Office (BPO) proceeding against the plaintiff was initiated in 2014 - it equals a whistle blower system. In an email from the head of HR to the plaintiff on March 8, 2017, the plaintiff was informed that a compliance check was planned for all (job) appointments in the legal area, which would also check whether a BPO Proceedings result in a violation of the rules. However, the first instance rejected the right of the plaintiff to claim information about the personal performance and the behavioral data processed by the employer, which was not stored in the personnel file. The employer refused to communicate this information because of third-parties interests, namely business secrets.

Holding

The Land court confirmed that Article 15 GDPR also exists in an employment law relationship, and a Member State is authorized to issue specific national regulations on employee data within certain limits. According to the GDPR, personal data is all information that relates to an identified or identifiable natural person ('data subject'), and, in an employment relationship, the employer inevitably processes personal data of its employees.

It has been judged that the plaintiff is entitled to information about personal performance and behavioral data. Those personal data is considered as a special category of personal data (sensitive personal data).

Furthermore, the claims for information and disclosure of personal performance and behavioral data are not limited in the present case by legitimate interests of third parties. Of course, the national does not give the data subject the right to information in accordance with Article 15 GDPR, insofar as the information would reveal confidential information about third-parties. However, even the existence of a corresponding ground for confidentiality does not mean that the data controller is entitled to refuse to provide the information. In fact, a weighing of interests must be carried out by the data controller, i.e. a balancing test between the right to information and the interest of confidentiality. But, the assessment must be done in each individual case and the Court cannot rule in general or in advance which legitimate interest prevails upon the other. The Court recognized that an overriding interest may exist if the employer guarantees anonymity to whistle blowers for the purpose of clarifying internal misconduct, because certain types of rule violations within a hierarchical structure can be detected more effectively through anonymous reporting procedures.

In such a case, the data subject's interest is likely to prevail due to an increased need for protection. The employer raised that the need for protection by whistle blowers requires unconditional protection. Otherwise, employees will in future refrain from notifying the employer of any misconduct, because they will be afraid to do it and they will be afraid of retaliation. However, according to the Court, these considerations are too general for a restriction of the plaintiff's right. The restriction of the right to information due to the predominant interest of third parties fails, because it remains unclear which concrete interests are threatened.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.