Germany: Employees Have Broad Rights to Personnel Files

 

By Jan-Ove Becker and David Wagner April 18, 2019
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​Employees can access their personnel files and get a copy of any other data processed and stored about them, even during an ongoing trial, according to a Dec. 20 ruling by Germany's State Labor Court of Baden-Württemberg.

A large German car manufacturer fired the plaintiff, an attorney, for performance issues. Before the firing, the manufacturer opened an investigation into the plaintiff based on a whistle-blower's tip. Although the investigation found that the plaintiff had breached company rules, the company did not discipline the attorney.

After the firing, the plaintiff sued, claiming unfair dismissal and asking for access to files documenting the investigation and any records on the plaintiff's on-the-job performance and behavior.

Right to Review Files

The State Labor Court reversed the employee's dismissal and agreed that the plaintiff had a right to review these records, including files the company had deemed confidential. It's unclear if the company reinstated the attorney or if it paid him damages.

The court rejected the company's argument that the disclosure would endanger an ongoing internal investigation, since the investigation was finished. Nor could the company plausibly argue that it had to withhold the files to protect the identity of the whistle-blowers, as this could be easily done by redacting their names.

The court also ruled that the plaintiff had a right to files on his performance and behavior under Article 15 of the General Data Protection Regulation (GDPR), which provides a right to information and has been applicable in the European Union since May 2018.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

First Decision of Its Kind

This ruling is the first time a German labor court has defined the scope of the right to information under Article 15 of the GDPR. The State Labor Court broadly interpreted employee rights under the GDPR, leading to its conclusion that an employer must provide the employee with almost any data about the worker since the start of the employment relationship.

This decision might impact employer data record-keeping protocols. Should an employee ask to see his or her personnel files, the employer would need to first scan for and possibly remove any information on trade and business secrets and personal data about other people. Redacting the information could require enormous effort.

The company has appealed the court's ruling. The Federal Labor Court may endorse a more restrictive interpretation of the information rights under the GDPR.

Jan-Ove Becker and David Wagner are attorneys with Littler in Hamburg, Germany.

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