Progressive digitalization enables the detailed and person-specific monitoring of work performance. Yet not everything that is technically possible is also legally permissible. Those who are not aware of the boundaries rapidly draw the attention of data protection authorities. Furthermore, violations by employees may, under certain circumstances, be difficult to sanction.
In the present case, the works council took legal action against an airport operator. The latter had launched an internal investigation to resolve criminal charges against the former managing director. In the course of this investigation, the employer forwarded e-mails from the manager and other employees to an auditing company and a law firm for examination – without involving the works council.
No forwarding and examination of e-mails without the works council
The employee representation regarded this as a violation of its co-determination right as per Section 87 of the Works Constitution Act (BetrVG) and pressed claims for information, remedy and injunctive relief. Under Section 87 of the Works Constitution Act (BetrVG), the employer is not only obliged to remedy the violation of the works constitution, the consequences of the violation must also be rectified. In this case, the airport operator had to arrange the deletion of the data forwarded to third parties.
The Cologne Labor Court approved the application. However, the Cologne Regional Labor Court ruled against the demand for deletion, forcing the Federal Labor Court (PAG) to decide on the legal complaint by the works council.
Claim to rectification of the consequences as per Section 87 of the Works Constitution Act (BetrVG) went too far
The supreme Labor Court judges in Erfurt reached the following decision on March 23, 2021: If the employer violates the right of co-determination pursuant to Section 87 of the Works Constitution Act (BetrVG), they must only remedy the violation of the works constitution. The consequences of the violation need not be rectified. The works council is not entitled to demand that the company arrange the deletion of the employee’s forwarded personal data. Such an impairment could only be remedied through claims for damages as per Section 823 of the German Civil Code (BGB). However, this requires proof of actual damages by the employee.
Federal Labor Court, decision from 3/23/2021, – 1 ABR 31/19
The Federal Labor Court has repeatedly illustrated the boundaries of the technical monitoring of employees. That is why trusting collaboration with the works council is worthwhile, even if the employer does not have to rectify the consequences of its violation of the right to co-determination. To minimize the risks, companies should be aware of the exact boundaries. Works agreements can provide some leeway with regard to data protection.