In the underlying case, the plaintiff had applied for a job in the IT sector. He submitted a curriculum vitae and filled out a personnel questionnaire, both in which he highlighted his professional and international experience, as he also did in the interview. He was particularly convincing because of his international experience, which was ultimately decisive in his appointment to the position of Group IT Director on December 1, 2014.
Apparently, the employment relationship quickly became tense and the employer announced his dismissal several times during the year 2015 – without success.
In the course of these legal disputes, various inconsistencies then came to light in the employee’s statements, for example with regard to the spelling of his last name and especially with regard to the dates of his graduation which fluctuated between 1997 and 2001. This made the employer suspicious and he carried out a background check on the Internet. During the Internet search, further inconsistencies were discovered, so that the employer asked for verification of the actual qualification by notarized certificates. The employee did not provide any further information and the employer finally declared in April 2017 that the employment contract could be rescinded on the grounds of fraudulent misrepresentation.
The Regional Labor Court of Baden-Wuerttemberg ruled that the rescission was effective. The fact that the employee had allegedly been convicted in the USA of a criminal offence in the IT sector was no longer relevant to the proceedings. The employee did not have to disclose this fact when applying for the job. However, the court stated that the employee’s incorrect statements about his professional career alone had justified the contestation.
Questions from the employer regarding the education, qualification and professional career of the applicant were generally admissible. The applicant was obliged to answer the questions truthfully. In this particular case, the applicant had been recruited on the basis of the information provided in the personnel questionnaire and in his curriculum vitae. Since these statements proved to be false, the contestation of the employment contract on the grounds of fraudulent misrepresentation was justified, according to the Regional Labor Court (Landesarbeitsgericht – LAG).
The court did not share the employee’s objections that his data protection rights were violated by the background check on the Internet and that the information obtained was disproportionate. In the given situation, it was justified that the employer had obtained generally accessible information on the Internet about his employee. There was no violation of the General Data Protection Regulation (GDPR).
The decision is not legally binding. The appeal hearing at the Federal Labour Court (Bundesarbeitsgericht – BAG) ) – file number: 6 AZR 92/19 – is still pending.