For new employees, many employers have been using application management tools or recruiting software for a long time to select applicants. However, the increased digitalization in this field does not change the fact that the works council needs to be fully informed and consulted.
Documents Do Not Only Exist On Paper
According to Article 99 Section 1 of the Works Constitution Act, the works council has to be informed before each new employment, and it must be provided with the application documents. However, in times of growing digitalization, documents are not only limited to paper, but also include all digital entries. This also applies to comments, chats and assessments made in relevant recruiting software, the Higher Labor Court Cologne determined.
Access to Comment Functions
In the underlying case, a company had to recruit a programmer. For the selection of applicants, the company also relied on a digital application management system. This software offers many functions – one of them being the possibility for users to leave comments. These comments can only be seen by those with the necessary readership clearance.
In this case, the works council did not have such clearance. It therefore refused its consent to the selection of the applicant. The hearing had been incorrect because the works council had not been fully informed. It had only had limited access to the application management tool and no insight into the comment function. In addition, an in-house application had not been considered, although it would have been suitable.
In the employer’s opinion, the comment function was only for the internal exchange of ideas and did not fall under the works council’s right to information.
Works Council’s Right to Information
The employer was not successful with this argument at the Higher Labor Court Cologne. The works council had to be fully informed by the employer. Furthermore, every detail of each application had to be revealed to the works council. If an application management tool is being used, the works council needs to have full readership access. Only in this way can the works council have the same level of access to information as the employer.
The duty to submit information includes all documents which could have an influence on the staffing decision. This also covers documents which the employer has produced itself, such as comments and assessments, the Higher Labor Court stated.
It is not sufficient to only provide the works council with printed copies of the files available in the data processing computers without giving it documentation of the functionalities used at the same time. The Higher Labor Court found that granting readership access would be a good way of doing this.
With this decision, the Higher Labor Court Cologne has specified the works council’s right to be informed when an application management tool is being used. Therefore, the works council should be informed in detail about the functionalities of the software used.
