Review of the personnel file

No right to consult an attorney

(Federal Labor Court, decision dated July 12, 2016 – 9 AZR 791/14)

Pursuant to sec. 83 para. 1 sent. 1 Works Constitution Act (BetrVG), the employee has the right in an existing employment relationship to review his personnel file. In doing so, he is also allowed to consult a member of the works council pursuant to sec. 83 para. 1 sent. 2 BetrVG. On July 12, 2016, the Federal Labor Court was called upon to decide whether an employee is entitled to consult an attorney when reviewing his personnel file.

In the case decided by the Federal Labor Court, the employee had received a warning from his employer. After the employer denied the employee the right to review his personnel file together with his attorney, the employee unsuccessfully filed suit with the same objective before the Labor Court Würzburg. The Higher Labor Court Nuremberg also rejected the appeal of the claimant. Among other arguments, it was stated in the recital that the right to review a personnel file involves a “strictly personal” right, which is definitively regulated in sec. 83 para. 1 BetrVG. Because this rule only grants the right to consult a member of the works council, no entitlement exists to consult an attorney (cf. Higher Labor Court Nuremberg, decision dated October 10, 2014 – 8 Sa 138/14). The employee subsequently filed for an appeal before the Federal Labor Court.

The Federal Labor Court dismissed the appeal of the employee. It was stated in the recital of the Federal Labor Court that sec. 83 para. 1 BetrVG does not constitute any entitlement of the employee to consult a lawyer. Such an entitlement can be derived neither from the employer’s obligation to take account of the rights, legal interests and other interests of the other party pursuant to sec. 241 para. 2 Civil Code (BGB), nor from the fundamental right to informational self-determination pursuant to Art. 2 para. 1 in connection with Art. 1 para. 1 GG of the Constitution (GG), if the employer allows the employee to make copies of documents found in the personnel file. Through the option of making copies, the claimant is said to have sufficient opportunity to study the content of the personnel file undisturbed and to discuss it with an attorney.

Practical recommendations:

We agree with the result of the Federal Labor Court’s judgment. Sec. 83 para. 1 BetrVG only expressly grants the right to consult a member of the works council in reviewing the personnel file. To the extent that the Federal Labor Court also rejects entitlements deriving from sec. 241 para. 2 BGB and based on the fundamental right of informational self-determination, it should be taken into account, however, that the ruling only pertains to the scenario where the employee is allowed to make copies of his personnel file. The Federal Labor Court explicitly left the question unresolved as to whether the employee is entitled in other cases to appoint a third party to review his personnel file or to consult a third party who is not a member of the works council in carrying out the review. At least in exceptional situations, this could indeed be the case.

In consequence, an employer who wishes to exclude non-company parties from reviewing files on site should allow his employees to make copies of the personnel file, in addition to reviewing it. To the extent that this is also not desired, the employee should at least be allowed to make handwritten notes. Whether this complies with the legal requirements would in turn be a case-by-case decision.

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Tags: #Labour law, #Newsletter Employment Law 4/16

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