LAG Berlin-Brandenburg - 5 Sa 1046/22
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| LAG Berlin-Brandenburg - 5 Sa 1046/22 | |
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| Court: | LAG Berlin-Brandenburg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 12(5) GDPR Article 15(4) GDPR Article 23(1)(i) GDPR Art. 8(2) CFR § 29(1) BDSG § 34(1) BDSG |
| Decided: | 30.03.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 5 Sa 1046/22 |
| European Case Law Identifier: | ECLI:DE:LAGBEBB:2023:0330.5SA1046.22.00 |
| Appeal from: | ArbG Frankfurt (Oder) 3 Ca 358/22 |
| Appeal to: | Appealed - retracted BAG 8 AZR 173/23 |
| Original Language(s): | German |
| Original Source: | Landesrecht Brandenburg (in German) |
| Initial Contributor: | n/a |
District Labour Court Berlin-Brandenburg ruled that access requests are not inherently abusive if not solely lodged for data protection purposes. Controllers must balance interests when denying access to data, substantiating confidentiality reasons.
English Summary
Facts
The parties disputed a data access request under Article 15 GDPR and claims for damages. The plaintiff, employed since 1990 and accused of workplace misconduct, requested access to interview records involving allegations against them. The defendant provided redacted copies of processed data. The plaintiff sought unredacted copies and damages, claiming the redactions obstructed proof of alleged workplace harassment.
Holding
- Article 15 GDPR grants the right to access personal data, including unredacted data, irrespective of the plaintiff's intent for obtaining the data.
- Section 34(1) BDSG alongside Section 29(1) BDSG limits data disclosure when third-party confidentiality or interests are at stake.
- Employers must justify non-disclosure by proving that revealing specific data harms their interests or those of others.
Comment
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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.
Guiding Principles 1. Requests for information and the provision of a data copy can also be based on Article 15 of the GDPR even if they do not serve the purpose mentioned in Recital 63, sentence 1 of the GDPR, to become aware of the processing of personal data and to verify its legality, and therefore have - exclusively or predominantly - other than data protection-related interests. In such cases, the request is not abusive and manifestly unfounded or excessive within the meaning of Article 12 (5) sentence 2 GDPR. 2. According to Section 34 (1) in conjunction with Section 29 (1) sentence 2 of the Federal Data Protection Act (BDSG), the right of the data subject to information under Article 15 GDPR does not exist insofar as the information would disclose information that must be kept secret under a legal provision or by its nature, especially due to the overriding legitimate interests of a third party. These can also include interests in keeping information about employees confidential from the employer for the purpose of investigating internal misconduct. 3. A balance must be struck between the interests of the data subject and legitimate confidentiality interests. The burden of proof for the circumstances justifying the refusal of the requested information in the individual case within the framework of the necessary balancing of interests lies with the responsible party, in this case, the employer. 4. The employer must therefore explain which specific personal data cannot be disclosed without affecting protectable interests. This explanation does not require disclosing the personal data as such. It is sufficient, but also necessary, to specify the exact information (incident/occurrence/topic in temporal and spatial context along with the acting persons) to which the overriding legitimate interest in confidentiality is to relate. 5. Claims for compensation for pain and suffering due to alleged bullying (denied in the present individual case). Ruling I. On the plaintiff's appeal, the judgment of the Labour Court Frankfurt (Oder) of 6 September 2022 - 3 Ca 358/22 - is amended, and the defendant is ordered to provide the plaintiff with copies of the completed and unredacted interview protocols, which were created in connection with the questioning of employees about the plaintiff's leadership style. II. In other respects, the appeal is dismissed. III. The plaintiff is to bear 86% and the defendant 14% of the costs of the first-instance legal dispute, and the plaintiff is to bear 84% and the defendant 16% of the costs of the second-instance legal dispute. IV. The defendant's appeal is admitted, and the plaintiff's appeal is not admitted. Facts The parties are in dispute over the right to information under Article 15 of the General Data Protection Regulation (GDPR) and damages. The 63-year-old plaintiff has been employed by the defendant or its legal predecessor since 15 October 1990, since 1 January 1993 as a sales manager in the field service with a gross monthly salary of 11,402.00 Euros. This includes bonuses, the amount of which depends significantly on the previous year's performance assessment. In recent years, the plaintiff had usually received a rating for performances that exceeded or met expectations. The defendant belongs to a US food company operating in Germany with around 1,900 employees at several locations. The plaintiff is assigned to the Bremen plant. A works council is present there. The plaintiff mainly works from home. Until early 2022, he was the head of a field service team with about 10 to 14 employees. In June 2021, the defendant was informed by the chairwoman of the works council that a team member of the plaintiff had complained about bullying by her supervisor, the plaintiff. The works council had previously attempted unsuccessfully to mediate with the BEM representative. Subsequently, attempts at mediation involving an external mediator and conflict resolver were also unsuccessful, partly with both affected parties and partly in individual coaching sessions. A proposed group coaching session did not take place. In July 2021, the plaintiff gave the employee a performance evaluation, stating that she had only partially met performance expectations. In December 2021, the employee's union requested the defendant to resolve the conflict, noting that there had been a mixing of professional and private spheres. The defendant was presented with a WhatsApp communication from a private WhatsApp group consisting of several members of the plaintiff's team and the plaintiff, including the complaining employee. In October 2019, the plaintiff posted a vacation picture from a beach in which he was naked, with his genitals and part of his lower body and legs covered by a rock (see the copy on page 42 of the file). On 22 December 2021, the defendant sent the plaintiff an offer to terminate the employment relationship in exchange for severance pay via email (see the email from 22 December 2021, page 22 of the file). The plaintiff did not accept this offer. The defendant then conducted several interviews with the plaintiff's team members from 11 to 19 January 2022. The team members were asked mostly identical questions based on a questionnaire (see the copies of partially redacted interview protocols submitted by the defendant, pages 268 to 307 of the file). The questions concerned, among other things, the plaintiff's leadership style, the separation of work and private life, questions about vacation pictures, personal and physical contacts, and the plaintiff's relationship with certain individuals. A questionnaire with such questions was sent to the plaintiff, who had been informed of a performance rating considered only partially fulfilled on 13 January 2022 and had been continuously unable to work since 17 January 2022, which he answered and returned with a letter dated 23 February 2022. The questionnaire (pages 36, 37 of the file) and the plaintiff's answers (pages 41 to 47 of the file) are referred to. In a letter dated 11 March 2022 (pages 48 ff. of the file), the plaintiff requested the defendant to provide information under Article 15 GDPR and copies of personal data. In a letter dated 15 March 2022, the defendant issued the plaintiff a warning for sending the vacation picture, which showed the plaintiff naked (pages 189 ff. of the file). The plaintiff objected to this in a letter dated 23 March 2022 to the personnel file. In a letter dated 11 April 2022, the defendant informed the plaintiff that information under Article 15 GDPR would be provided by 11 May 2022. In a letter dated 11 May 2022 (pages 334 to 346 of the file), the defendant then provided the plaintiff with information on processed personal data and attached copies of such data. The copies also included the redacted interview protocols of the interviews conducted by the defendant. The plaintiff, who was able to work again from 1 July 2022, was reassigned by the defendant on 27 July 2022 until the end of the year and, due to an extension of this measure, beyond that until 30 June 2023, to the position of Regional Field Project Manager, without working with his team. The plaintiff's superiors informed him that allegations of sexual harassment were "off the table". On 20 March 2023, he was given a performance rating of "Below Expectation" (see the protocol of a previous personal interview on 18 January 2023, submitted by the defendant, Annex B 5). With the lawsuit filed on 11 April 2022, the plaintiff sought information about his data, copies of all personal data, damages for the failure to provide information, and damages for bullying. He argued that he was entitled to unredacted copies of the interview protocols of the employee interviews, which he needed to prove bullying by the defendant. The claim for information and the provision of data copies had not been fulfilled by the defendant's letter of 11 May 2022. Bullying by the defendant against him resulted from his downgraded evaluation on 13 January 2022, after a positive assessment had been promised on 16 November 2021, the offer to terminate the employment relationship on 22 December 2021, the defendant's placement of allegations of sexual harassment, the warning for the vacation photo, and the reassignment outside his team and further downgrading in the performance evaluation in early 2023, which led to a reduction in his remuneration. This had burdened him so much that he was unable to work from 17 January 2022 to the end of June 2022 due to a psychosomatic stress situation. The plaintiff requested the following: 1. To order the defendant to provide the plaintiff with information about the purposes of processing the plaintiff's personal data; the categories of personal data being processed; the recipients or categories of recipients to whom the plaintiff's personal data have been or will be disclosed; the planned duration of the storage of personal data or, if this is not possible, the criteria for determining this duration; the existence of a right to rectification or deletion of the plaintiff's personal data or to restrict processing by the controller or to object to this processing; the existence of a right to lodge a complaint with a supervisory authority; if the personal data are not collected from the plaintiff, all available information about the source of the data, including profiling and meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the plaintiff. 2. To order the defendant to provide the plaintiff with copies of all personal, written, or electronically stored data in the defendant's files or IT system that are subject to processing; in particular all written and email correspondence, including that of the management, relating to the allegations made by Ms. Melanie Mühlen against the plaintiff, and the completed and unredacted questionnaires sent to employees in connection with questions about the plaintiff's leadership style. 3. To order the defendant to pay the plaintiff an amount of 1,000.00 Euros plus interest at the rate of 5 percentage points above the base rate since 11 March 2022. 4. To order the defendant to pay the plaintiff damages of at least 20,000.00 Euros. The defendant requested the dismissal of the lawsuit. The defendant argued that it had fulfilled the plaintiff's request for information and provided all available data in copy. The request in item 2 was not sufficiently specific. The plaintiff also had no claim to the unredacted documents of the interviews from January 2022. With the employees' statements, he could not prove bullying by the defendant. Furthermore, confidentiality had been assured to the employees during the interviews in January 2022. There was no claim for damages due to a violation of the GDPR. No bullying actions towards the plaintiff had occurred. Offering a termination agreement was not bullying, otherwise, the employer could never make such an offer. The issued warning was also not bullying. The defendant had never accused the plaintiff of anything but had conducted internal investigations, which it was also obligated to do. Furthermore, the defendant was free to base the end-of-year evaluation on its findings regarding the plaintiff's leadership style. The results of such end-of-year evaluations were also not communicated to third parties. With a judgment dated 6 September 2022, the Labour Court dismissed the lawsuit. The lawsuit was inadmissible concerning requests 1 and 2; these requests were not sufficiently specific. After receiving the information and the provided copies, the plaintiff had not specified the requests. If these requests were to be interpreted as only concerning the unredacted copies of the employee interviews from January 2022, they were unfounded. The right to receive copies was restricted due to the defendant's and the interviewed employees' interest in confidentiality. The plaintiff did not have a predominant interest in learning the answers of the interviewed employees, and he could not substantiate bullying actions by the defendant. A claim for damages under Article 82 (1) GDPR was excluded because the defendant had not provided the information late and the plaintiff had not demonstrated any damage. There was also no claim for compensation for pain and suffering due to injury to health or personal rights by bullying actions attributable to the defendant. The warning issued on 15 March 2022 and the downgrading of the performance evaluation based on leadership behavior were not to be considered harassment. The defendant had complied with its duty to conduct internal investigations following accusations against the plaintiff. Offering the termination of the employment contract was a usual procedure in similar investigations. The overall behavior of the defendant and the involved employees did not constitute systematic and prolonged bullying. The plaintiff filed an appeal against this judgment, received on 29 September 2022, on 5 October 2022 and substantiated it on 17 November 2022, regarding requests 2 to 4. The plaintiff argued that the Labour Court had wrongly considered request 2 as insufficiently specific since it referred to specific documents. The court's weighing of interests regarding the provision of unredacted interview protocols was also faulty. The refusal to provide the documents served only to cover up systematic bullying by the defendant. The recorded responses of the interviewed employees did not confirm the accusations made by the employee or a deficient leadership style by the plaintiff. The plaintiff needed the interview protocols to prove bullying by the defendant, which continued to treat him harassingly despite exonerating findings. This included the termination offer, the downgrading of the performance evaluation in early 2022, the unjustified warning for purely private matters issued on 15 March 2022, the temporary reassignment to a position outside his team after returning to work, and the further downgrading in the performance evaluation in early 2023. Contrary to the Labour Court's opinion, this also substantiated the claimed compensation for pain and suffering. The plaintiff requested, after withdrawing the appeal regarding claim 3 (original appeal claim 2): 1. To amend the judgment of the Labour Court Frankfurt (Oder) of 9 September 2022, docket number 3 Ca 358/22, and to order the defendant to provide the plaintiff with copies of all personal, written, or electronically stored data in the defendant's files or IT system that are subject to processing; in particular, all written and email correspondence, including that of the management, relating to the allegations made by Ms. Melanie Mühlen against the plaintiff, and the completed and unredacted interview protocols created in connection with the questioning of employees about the plaintiff's leadership style. 2. To order the defendant to pay the plaintiff damages of at least 20,000.00 Euros. The defendant requested the dismissal of the appeal. The defendant argued that the appeal request 1 was not sufficiently specific. The demand for the provision of unredacted interview protocols was also opposed by the overriding interests of third parties. The interviews were conducted confidentially because the outcome of the internal investigations was uncertain, and the defendant could not rely on receiving truthful information if the employees feared that the plaintiff, as their supervisor, would learn about the content of the interviews. Moreover, there was no information gap since the plaintiff evidently already knew the responses of the involved employees. The allegation of bullying was still unfounded. The renewed downgrading in the performance evaluation in early 2023 was due to the plaintiff not performing the tasks assigned after returning to work without complaints. For further submissions by the parties in the second instance, reference is made to the briefs and attachments of the plaintiff from 16 November 2022 (pages 267 to 275 of the file), 16 March 2023 (page 307 of the file), and 23 March 2023 (pages 310 to 312 of the file), the defendant from 23 January 2023 (pages 300 to 304 of the file) and 29 March 2023 (pages 314 to 319 of the file), as well as the protocol of the oral hearing on 30 March 2023 (pages 321 to 322 of the file). **Reasons for the Decision** I. The appeal is admissible according to §§ 8 (2), 64 (2)(b) and (6), 66 (1) of the Labour Court Act (ArbGG), 519 of the Civil Procedure Code (ZPO), and was filed in a timely and proper manner. It was also adequately substantiated according to §§ 64 (6) ArbGG, 520 (3) ZPO regarding appeal claims 1 and 3. II. The appeal is partially well-founded concerning appeal claim 1, but otherwise unfounded. 1. The claim encompassed by appeal request 1 is only partially admissible and, where admissible, also well-founded. The challenged judgment is to be amended in this regard. Otherwise, this request is inadmissible. a) The claim encompassed by appeal request 1 is divisible and sufficiently specific and admissible concerning the interview protocols mentioned therein under § 253 (2)(2) ZPO. aa) A claim is sufficiently specific if it clearly identifies the asserted right through quantification or specific description, so that the scope of the judicial decision-making power (§ 308 ZPO) is clearly defined, the content and scope of the substantive res judicata of the desired decision (§ 322 ZPO) are recognizable, the risk of partial defeat of the plaintiff due to avoidable vagueness is not shifted to the defendant, and possible enforcement is not burdened with a continuation of the dispute in the enforcement proceedings. The lack of specificity of requested copies of personal data leads to the indefiniteness of the claim if the defendant has already provided a copy of the personal data it processes (BAG, judgment of 27 April 2021 - 2 AZR 342/20 -, BAGE 174, 351-357, para. 21). bb) The appeal request 1 is divisible. It encompasses, in the first clause, a claim for the provision of copies of all personal data in the files or IT system of the defendant, written or electronically stored, that are subject to processing. Due to the word "particularly," it then includes specific documents, namely written and email correspondence of any person relating to the allegations made by Ms. Melanie Mühlen against the plaintiff and the completed and unredacted protocols of interviews conducted by the defendant with employees regarding the plaintiff's leadership style. Each of these claims can be decided independently without violating § 308 ZPO, as the documents listed in the second clause are distinct subsets of the general category of personal data of the plaintiff stored in the files or IT system of the defendant. cc) The first clause of appeal request 1 is not sufficiently specific under § 253 (2)(2) ZPO. The defendant has undisputedly provided the plaintiff with over 200 pages of copies of processed personal data in a letter dated 11 May 2022. The first clause of the claim does not specify which additional copies of personal data should be provided. Therefore, this part of the request is inadmissible based on the aforementioned principles. dd) The first part of the second clause, referring to "all written and email correspondence, including that of the management," "relating to the allegations made by Ms. Melanie Mühlen against the plaintiff," contains a limitation compared to the provided copies but remains insufficiently specific, as it relies on a "relation" to the allegations and thus leaves a scope for interpretation that would burden enforcement with a continuation of the dispute in the enforcement proceedings. Therefore, this part of the request is also inadmissible based on the aforementioned principles. ee) However, the second part of the second clause is sufficiently specific as a "minus" to the generally claimed right to receive copies of personal data processed by the defendant. The defendant has undisputedly already provided the plaintiff with the disputed interview protocols but in partially redacted form. The parties agree on which interviews are covered by the protocols, namely those conducted by the defendant with employees of the plaintiff's team from 11 to 19 January 2022 following the allegations against the plaintiff. Therefore, this part of the appeal request 1 is sufficiently specific to define the scope of the judicial decision-making power (§ 308 ZPO), the content and scope of the substantive res judicata of the desired decision (§ 322 ZPO), and does not shift the risk of partial defeat of the plaintiff due to avoidable vagueness to the defendant, nor burden potential enforcement with a continuation of the dispute in the enforcement proceedings. b) The claim encompassed by appeal request 1, where admissible, is also well-founded. The defendant is obligated under Article 15 (3) sentence 1 GDPR to provide the plaintiff with copies of the completed and unredacted protocols of the interviews conducted with employees of his team from 11 to 19 January 2022. aa) Article 15 GDPR is applicable here. (1) In addition to the temporal and territorial scope, the material scope of the GDPR is also applicable. According to Article 2 (1) GDPR, this Regulation applies to the fully or partially automated processing of personal data and the non-automated processing of personal data stored or to be stored in a filing system. Under Article 4 (6) GDPR, "filing system" means any structured set of personal data accessible according to specific criteria, whether centralized, decentralized, or dispersed on a functional or geographical basis. (a) The defendant undisputedly has the disputed interview protocols it created, in which oral statements by employees about the plaintiff's behavior as a supervisor and towards specific employees are recorded in writing by representatives of the defendant. These are personal data of the plaintiff. Personal data are defined in Article 4 (1) GDPR as any information relating to an identified or identifiable natural person. According to this definition and the case law of the Court of Justice of the European Union, the term is to be understood broadly. It is not limited to sensitive or private information but potentially encompasses all types of information, both objective and subjective, in the form of opinions or evaluations, provided they are about the person concerned (BGH, judgment of 22 February 2022 - VI ZR 14/21 -, para. 11). The information recorded in the protocols about the plaintiff's behavior as a supervisor or towards other persons in specific situations is personal data accordingly. (b) The protocols, as a media record of the information, constitute a structured collection of personal data organized by time and participants in the conducted interviews. How they are stored by the defendant and whether they are organized by functional or geographical criteria is irrelevant under Article 4 (6) GDPR. (2) The right to information under Article 15 GDPR also applies in an employment relationship. The general provisions of the GDPR constitute comprehensive regulation, including the protection of employee data (LAG Baden-Württemberg, judgment of 20 December 2018 - 17 Sa 11/18 -, para. 198). bb) The conditions of Article 15 (3) sentence 1 GDPR are met. The defendant, which recorded the orally given information of third parties in protocols and retains them, decides solely on the use of these protocols and thus on the purposes and means of processing the relevant personal data of the plaintiff. It is therefore the "controller" within the meaning of Article 4 (7) sentence 1 GDPR and is thus obligated under Article 15 (3) sentence 1 GDPR to provide a copy of processed personal data if requested under Article 15 GDPR. The provision of partially redacted copies does not fulfill this obligation as it does not provide a copy of a particular part of the personal data. The defendant does not claim to have redacted parts of the protocols that contain no information about the plaintiff. Instead, due to a confidentiality promise, it redacted all answers of the interviewed employees and, in some cases, specific questions containing information about the plaintiff's behavior. cc) The right to receive unredacted copies of the interview protocols is not excluded because the plaintiff declaredly needs them to prove bullying by the defendant, and this could be seen as an abusive request. (1) It is argued that requests for information and the provision of a data copy cannot be based on Article 15 GDPR if they do not serve the purpose mentioned in Recital 63, sentence 1 of the GDPR, to become aware of the processing of personal data and verify its legality, and therefore have other than data protection-related interests. Such requests would be abusive and could be dismissed as manifestly unfounded or excessive under Article 12 (5) sentence 2 GDPR (see the citations in BGH, EuGH submission of 29 March 2022 - VI ZR 1352/20 -, para. 15). This view is not to be followed. Article 15 GDPR does not make the existence of the rights and obligations regulated therein dependent on a motivation corresponding to the aforementioned protective purpose and does not require the data subject to justify their request for information and a copy. This suggests that the EU legislator intended to leave it to the free will of the data subject whether and for what reasons they exercise their rights under Article 15 GDPR. This also suggests that the data subject can become aware of the data processing and verify its legality through the provision of information and a copy based on Article 15 GDPR, even if they requested it for other reasons, thus achieving the purpose of the provision independently of the motivation of the data subject (BGH at the cited location, para. 18). (2) Since the motivation for asserting claims under Article 15 GDPR is irrelevant, it is also irrelevant whether the plaintiff's stated motivation to obtain evidence for bullying by the defendant seems credible when the plaintiff simultaneously asserts claims for alleged bullying without waiting for the provision of unredacted copies of the interview protocols. dd) The right to receive unredacted copies of the interview protocols is not excluded because they contain information that must be kept confidential by its nature or due to legitimate interests of third parties. (1) According to Section 34 (1) in conjunction with Section 29 (1) sentence 2 of the Federal Data Protection Act (BDSG), the right of the data subject to information under Article 15 GDPR does not exist insofar as the information would disclose information that must be kept secret under a legal provision or by its nature, especially due to the overriding legitimate interests of a third party. "Third party" under Article 4 (10) GDPR, whose definitions also apply to the BDSG, cannot be the data subject or the controller. The regulations in Section 34 (1) in conjunction with Section 29 (1) and (2) BDSG are based on the opening clause of Article 23 (1)(i) GDPR, which allows the restriction of the information and notification obligations of the controller or the right of access by data subjects for the protection of the data subject or the rights and freedoms of others (LAG Baden-Württemberg, judgment of 20 December 2018 - 17 Sa 11/18 -, para. 205). Additionally, the right to receive a copy under Article 15 (4) GDPR is limited by the rights and freedoms of other persons. (2) A balance must be struck between the interests of the data subject and legitimate confidentiality interests. In favor of the data subject, the significance, weight, and purpose of the right to information about the origin of the data under Article 15 (1)(g) GDPR must be considered. The right of every person to access data concerning them and to request the correction of data is enshrined in Article 8 (2) sentence 2 of the Charter of Fundamental Rights of the European Union as part of the right to the protection of personal data. In favor of the third party, it must be considered that their rights are also protected by Article 7 (1) (respect for private life) and Article 8 (right to the protection of personal data) of the Charter (BGH, judgment of 22 February 2022 - VI ZR 14/21 -, para. 24). (3) A legitimate interest of third parties in keeping the information source confidential can exist if the employer assures informants anonymity to clarify internal misconduct. Certain types of rule violations within a hierarchical structure can be more effectively uncovered through anonymous reporting procedures. However, even in cases where a legitimate interest in protecting informants exists, there may be situations where the interest in confidentiality must give way to the data subject's right to information. This could include cases where an informant knowingly or recklessly provided the employer with false information. In such a case, the data subject's interest in information due to an increased need for protection would have a predominant weight (LAG Baden-Württemberg, judgment of 20 December 2018 - 17 Sa 11/18 -, para. 207). Whether, apart from these cases, it depends on the objective accuracy or inaccuracy of the information provided by the informant depends on the circumstances of the individual case (BGH, judgment of 22 February 2022 - VI ZR 14/21 -, para. 26). It can remain undecided whether it also depends on the employer's confidentiality interest, as the employer, although not a "third party" under Section 29 (1) sentence 2 BDSG, may be included under the first half-sentence of this provision, which could also apply to "other persons" under the authorization norm of Article 23 (1)(i) GDPR (as Kühling/Buchner/Bäcker, 3rd edition 2020, GDPR Art. 23 para. 32), because the defendant has not substantiated any legitimate confidentiality interests of its own or those of the affected employees. (a) The burden of proof for the circumstances justifying the refusal of the requested information in the individual case within the framework of the necessary balancing of interests lies with the responsible party. This party must not rely on mere assumptions but must specify the concrete facts that substantiate the predominant interest of the informant in confidentiality (BGH, judgment of 22 February 2022 - VI ZR 14/21 -, para. 28). It requires specifying a concrete incident based on which it can be examined whether the provision of information would indeed restrict the rights and freedoms of other persons. The responsible party must specify which exact information (incident/event/topic in temporal and spatial context along with the acting persons) the predominant legitimate interest in confidentiality relates to. Only then is the necessary individual assessment possible (LAG Baden-Württemberg, judgment of 20 December 2018 - 17 Sa 11/18 -, para. 209). The statement must particularly enable the examination of whether false information was provided knowingly or recklessly. In cases like the present one, the data subject's interest in information must prevail if the responsible party knew or should have known that the information provided was false. (b) The defendant's statement does not meet these requirements. It does not specify incidents or events in temporal and spatial context to which the redacted passages of the interview protocols relate. It only generally argues that there was deficient leadership behavior by the plaintiff and that confidentiality had to be promised to the employees to conduct an effective investigation. However, the defendant does not substantiate the accusation of deficient leadership behavior with specific incidents. That allegations of sexual harassment were also raised follows from the later statement by the plaintiff's superiors that such allegations were "off the table." The questions posed to the plaintiff in the questionnaire he received also suggest that such allegations were made. The later statement that such allegations were "off the table" leaves open the possibility that they proved to be knowingly or recklessly false. The defendant's statement does not exclude this possibility. In such a case, the defendant must provide unredacted copies of the related questions and answers from the interview protocols. There would be no legitimate interest in confidentiality of the defendant or third parties against this. (4) The Chamber refrained from giving the defendant an opportunity to provide supplementary statements on the aforementioned legal points. These points do not appear to have been overlooked by the defendant. The defendant itself referred to the decision of the LAG Baden-Württemberg, from which the requirements for the burden of proof in cases of informant protection cited here are derived. 2. The Labour Court rightly considered the claim encompassed by appeal request 3 to be unfounded. The plaintiff has no claim against the defendant for compensation for pain and suffering of at least 20,000.00 Euros due to "bullying." a) A claim for compensation for "bullying" can be considered as a contractual claim under § 280 (1) sentence 1 BGB. Under this provision, the creditor can claim compensation for the damage caused by the breach of duty if the debtor breaches an obligation arising from the contractual relationship. Under § 241 (2) BGB, each party to a contract owes not only performance obligations but also duties of care and protection for the rights, legal interests, and interests of the other party. Accordingly, the employer is obligated to consider the well-being and legitimate interests of the employee, to protect them from health hazards, including psychological harm, and not to subject them to behavior that aims to or results in violating their dignity and creating an environment characterized by intimidation, hostility, humiliation, degradation, or insult. In this context, the employer is particularly obligated to protect the health and personal rights of the employee. The employer is liable to the injured employee under § 278 sentence 1 BGB for culpable breaches of duty committed by employees or superiors acting as its vicarious agents. However, it is required that the culpable act of the employee acting as the employer's vicarious agent is closely related to the tasks assigned by the employer as vicarious agent. Such a connection is usually assumed when the vicarious agent concretizes the employer's duty of care towards the affected employee or when they have authority over the employee. A claim for compensation for "bullying" can also be considered as a tort claim, particularly under § 823 (1) BGB - or § 831 BGB. Under § 823 (1) BGB, not only is the unlawful infringement of the expressly protected legal interests, including health, prohibited. The general right of personality guaranteed by Article 2 (1) in conjunction with Article 1 (1) of the Basic Law is also recognized as a "right" within the meaning of § 823 (1) BGB. Its infringement can therefore also give rise to claims for damages. However, it should be noted that the scope of the general right of personality, due to its nature as a framework right, is not absolutely fixed but must be determined by balancing the conflicting constitutionally protected interests. The infringement of the right of personality is therefore only unlawful if the protection interest of the affected person outweighs the legitimate interests of the other side. If the employee, as here, bases their claim for damages on the employer having damaged their health through "bullying," they can also demand appropriate compensation in money under § 253 (2) BGB. If the employee, however, bases their claim for damages on the employer having unlawfully infringed their general right of personality, they can also demand appropriate compensation in money. This claim, however, does not follow from § 253 (2) BGB, as the general right of personality is not listed in this provision, but directly from § 823 (1) BGB in conjunction with Articles 1 and 2 (1) of the Basic Law. Since in claims for compensation based on "bullying," the non-material aspect of the general right of personality is concerned, the claim requires a serious infringement of the general right of personality and that the impairment cannot be satisfactorily compensated in another way. Whether such a serious infringement of the right of personality exists, requiring the payment of financial compensation, can only be assessed based on the overall circumstances of the individual case. In particular, the significance and scope of the infringement, the occasion and motive of the acting person, and the degree of fault must be considered. Not every conflict, disagreement, or unjustified action by the employer (e.g., warning, transfer, dismissal) constitutes an unlawful and blameworthy infringement of the employee's legal interests, thereby forming an unlawful act or breach of the duty of care under § 241 (2) BGB. Conflicts and disagreements are typical in the workplace, even if they extend over a longer period, and do not necessarily lead to unlawful infringement of the employee's legal interests or constitute a breach of the employer's duty of care. However, the boundary to unlawful or socially inappropriate behavior is crossed when actions are intended to or result in violating the employee's dignity and creating an environment characterized by intimidation, hostility, humiliation, degradation, or insult. In this context, it should be noted that there are cases where individual actions or behaviors by colleagues, superiors, or the employer do not alone constitute a legal violation, but the overall view of the individual actions or behaviors leads to the assumption of a contractual or legal infringement due to their systematic nature and objective of creating a particular environment. Then, all actions or behaviors attributable to the systematic process of creating such an environment must be considered, and individual past actions or behaviors must not be disregarded in the assessment (BAG, judgment of 15 September 2016 - 8 AZR 351/15 -, juris, paras. 30 ff). b) Based on these principles, the plaintiff is not entitled to compensation for pain and suffering from §§ 241 (2), 280 (1) sentence 1, 253 (2) BGB or §§ 823 (1), 253 (2) BGB due to unlawful injury to his health resulting from actions by the defendant or the plaintiff's superiors acting as its vicarious agents, even if it is assumed in his favor that he became ill on 17 January 2022 due to a psychosomatic stress situation resulting from the accusations against him. The plaintiff's superiors did not breach the employer's duty of care through actions aimed at violating the plaintiff's dignity and creating an environment characterized by intimidation, hostility, humiliation, degradation, or insult until 17 January 2022, based on the plaintiff's submissions. aa) The fact that they made an offer to terminate the employment contract to the plaintiff on 22 December 2021 occurred after learning of the complaints from a team member and the WhatsApp chat presented by the plaintiff. The plaintiff did not plausibly claim that the defendant knew at that time that the complaints were unfounded. The defendant's negative evaluation of the WhatsApp chat and the vacation picture posted by the plaintiff, and its decision to offer a termination agreement as part of its contractual freedom, does not breach the duty of care, nor can it be seen as intimidating behavior. bb) The fact that the defendant took the complaints against the plaintiff and the WhatsApp chat as reasons to find deficiencies in the plaintiff's leadership behavior and therefore announced on 13 January 2022 the downgrading of the planned performance evaluation previously considered in November 2021, was not evidently outside the defendant's evaluative discretion and does not constitute baseless or harassing behavior. It is not unreasonable or completely inappropriate for an employer to object to a sales manager posting potentially offensive vacation pictures in private WhatsApp groups exclusively formed by team members. Whether the performance evaluation might be legally contestable and not binding on the plaintiff is irrelevant, as not every unjustified employer action constitutes "bullying." cc) The plaintiff did not plausibly claim that the defendant "spread rumors" about sexual harassment by the plaintiff within the company. The interviews conducted from 11 January 2022 with the plaintiff's team members were undisputedly conducted with a promise of confidentiality, not spreading rumors within the company. Conducting the interviews corresponded to the defendant's obligation under § 12 (1) of the General Equal Treatment Act, which requires the employer to investigate allegations of sexual harassment (ErfK/Schlachter, 23rd edition 2023, AGG § 12 para. 3). dd) Referring to the warning dated 15 March 2022, the temporary transfers from 27 July 2022, and the announcement of a further downgrading in the performance evaluation on 23 March 2023, these actions cannot be causally related to the illness that occurred on 17 January 2022. The plaintiff did not argue that the warning received during the illness on 15 March 2022 further aggravated or prolonged the illness. A claim for damages based on unlawful injury to health cannot be derived from this. c) A claim for appropriate compensation in money for infringement of personal rights under § 823 (1) BGB is also not substantiated. The plaintiff's submissions do not indicate that the defendant or the plaintiff's superiors severely infringed the general personal rights of the plaintiff through individual actions or a combination of actions and that the infringement cannot be satisfactorily compensated otherwise. aa) As already stated, the defendant's objection to the vacation picture posted by the plaintiff in the private WhatsApp group of team members cannot be considered unreasonable or harassing behavior. Therefore, making it the subject of the warning dated 15 March 2022 does not constitute a severe infringement of the plaintiff's personal rights. Even after the allegations of sexual harassment were dismissed, the temporary transfer from 27 July 2022 was not baseless or harassing due to the defendant's continuing reservations about the plaintiff's leadership behavior. The same applies to the further downgrading in the performance evaluation announced to the plaintiff on 23 March 2023, based on specific complaints by the defendant regarding the plaintiff's performance after July 2022. bb) Even in its entirety, the defendant's behavior since December 2021 cannot be considered a severe infringement of the plaintiff's personal rights that can only be effectively remedied by awarding compensation for pain and suffering. The defendant responded to complaints against the plaintiff's behavior as a sales manager by taking steps to clarify the facts and offered the plaintiff a termination agreement within the scope of its contractual freedom. It used its unresolved concerns about the plaintiff's leadership behavior to downgrade the planned performance evaluation, issue a warning, and temporarily assign the plaintiff different tasks after returning to work, which led to further downgrading. Each of these actions may be legally contestable in individual cases. The plaintiff had or has the possibility of legal protection in such cases. However, a severe infringement of personal rights that can only be effectively remedied by awarding compensation for pain and suffering is not present. III. The cost decision is based on §§ 92 (1), 516 (3) sentence 1 ZPO. IV. The Chamber has allowed the defendant's appeal under § 72 (2)(1) ArbGG. However, there are no grounds for allowing the plaintiff's appeal according to § 72 (2) ArbGG.y
