In unfair dismissal proceedings, the right to information and copies of correspondence under Art. 15 GDPR has become a real bargaining tool for employees. This right gives data subjects the right to request confirmation from the data controller as to whether personal data is being processed. If this is the case, the data subject (the employee) is entitled to information regarding the personal data. The data subject may also demand a copy of the correspondence.
Dismissed employees are now making extensive claims for information in unfair dismissal proceedings. In many cases, these claims are not even remotely related to the dismissal. Employees do this because they know it is onerous for the employer. Even if the employer has carefully complied with GDPR requirements within the organization, a request for information creates work and ties up resources. Assuming that the employer is able to provide the requested information and copies, there is still a risk that the information is inaccurate, incomplete or provided too late. Employers will be concerned about the effort involved and also need to be aware of the following points:
- copies to be handed over must be checked for trade secrets, as well as any personal data unrelated to the dismissed employee, and be redacted accordingly, and
- in the worst-case scenario, the employer could attract unwanted attention from the data protection authorities and be levied with a fine.
The prospect of receiving damages is now leading to increasing requests for information by dismissed employees. For example, Labor Court Düsseldorf awarded an employee EUR 5,000 in damages due to incomplete information which was also provided too late (Labor Court Düsseldorf, judgment dated March 5, 2020 – 9 Ca 6557/18).
No copy of correspondence which the employee was already aware of
In one case, which has now been decided by the BAG, a dismissed employee demanded copies of all email correspondence – not just that between the employer and employee – in which he was personally mentioned. The lower court rejected this request. The BAG in Erfurt then had to decide how far the right to information should extend.
In the previous instance, the Regional Labor Court of Lower Saxony (LAG) ruled that the right to information did not include email correspondence conducted directly between the employer and the dismissed employee (judgment dated June 9, 2020 (Case ref.: 9 Sa 608/19)). The reason being that this correspondence was already known to the employee. The LAG was also of the opinion that the right to information does not extend to correspondence which does not relate directly to the employee. The BAGBAG did not challenge this view, stating instead that a decision on this point was not necessary because the legal right requires requested emails to be specified in detail.
Requests for other correspondence mentioning the employee must be sufficiently specific
As such, the scope of entitlement to copies of all other correspondence in which the employee is mentioned remains unresolved. The BAG merely followed the route taken by the LAG Lower Saxony, which rejected the request for being insufficiently specific. The BAG also ruled that an entitlement of this nature, if it were to exist, would have to be asserted either through a sufficiently specific claim or by multistage proceedings (“Stufenklage” under section 254 of the German Code of Civil Procedure (ZPO)).
Unfortunately, due to the procedural situation, the court failed to resolve the issue of how far the right to a copy of data truly extends. Referral to the Court of Justice of the European Union (CJEU) was avoided. For businesses, this means that requests for information can still be used in employment law disputes, albeit to a limited degree.
The restriction imposed by the BAG will be welcomed by employers. For now, companies can continue to reject blanket requests for all email copies. Such requests are not permissible if the requested emails are not specified in detail.
Ultimately, however, companies must develop ways of providing information quickly and reliably, so that these requests for information do not become a burden.