All too often, separations result in dismissal protection proceedings that end in a legal “war of the roses,” in which employees try to obtain the highest possible severance pay. A popular method when negotiating severance pay: The employee's right to information in accordance with Art. Art. 15 General Data Protection Regulation (GDPR). However, in April 2021, the BAG decided that an employer does not have to provide a copy of the entire e-mail communication in order to comply with the request for information. This could thwart workers who want to misuse the GDPR as “means of pressure” for higher severance pay.
Here we explain whether this strategy is legal at all and what employers can do to protect themselves in the context of data protection law. To this end, we have also worked with the data protection experts from Fresh Compliance replaced.
Can an employee always expect severance pay?
What many do not know is that there is generally no legal claim to severance pay. An action for protection against dismissal is no exception here, as it serves more to determine whether the dismissal was effective at all and whether the employee must continue to be employed or not. Employers often only pursue the claim for severance pay to avoid a loss of litigation, which would result in higher costs for the company.
However, if the employer is unwilling to respond to the employee's claim for payment of severance pay, employees have often relied on their right to information in the past. This states that employees, even after the end of the employment relationship, are entitled to request information about their stored data. The crux of the matter: Until now, an employee could demand access to all data concerning him, which meant an enormous amount of work for the company. Should this data not be provided on time or even incomplete, the employee would then be entitled to compensation. Apart from this, the right to information was often also used for the purpose of obtaining additional data burdensome to the employer.
What influence does the latest ruling by the BAG have on employment law disputes?
This legally questionable tactic has now been put to an end by a ruling by the Federal Labour Court (BAG). In that case A terminated business lawyer required the entire e-mail history between him and the employer as well as a copy of all emails relating to him. The BAG's decision was primarily important for the scope of the right to information under data protection law, in particular when this is used as a means of pressure. In fact, the BAG made it clear that blanket requests for information are not sufficient. Rather, it must be clearly specified which emails the employee requires information about. Accordingly, all emails ever sent or related to the employee do not have to be released.
From when do we even talk about abuse of rights?
This is particularly the case if, for example, in court proceedings, the employee suddenly waives the right to information should he receive the sought severance payment from the employer. This indicates that the aim of the request for information is in reality not to provide the data itself, but above all to obtain excessive severance payment.
Even if a decision by the ECJ or national laws on this is still pending, the FOPH's ruling at least offers an outlook. Until the legislator creates uniform regulations, employers may, in the event of very comprehensive requests for information, rely on the fact that it involves an unreasonable effort and that employees must specify which data they want to obtain information about. As a result, it should be carefully checked whether and which data should be released and whether third-party data should be redacted - preferably in close cooperation with the data protection officer.
How can you protect yourself as an employer?
If, following a dismissal, an employee actually tries to use his right to information as a means of pressure in order to obtain higher severance pay, care should be taken. But what is the right way for an employer to proceed in this situation?
For this purpose, we have one of Fresh Compliance Founder and data protection expert Philipp Heindorff spoke. In doing so, we want to find out what concrete measures employers can take to be on the safe side in the event of a data protection dispute within labor court proceedings.
1. Would it be advisable and admissible to agree on a waiver of the right to information with effect for the future in the termination agreement?
For the sake of completeness, let's start a bit earlier. In principle, every person concerned is entitled to the right to information under Article 15 of the GDPR. This must be actively exercised. In addition, there are information requirements under Article 13 GDPR, according to which, when processing personal data, the person responsible must inform the data subject “of his own accord” about the processed data. In this respect, these information requirements should already be well taken into account in order to avoid problems later on, regardless of the right to information. This can also be addressed in employment law disputes.
As far as the question of settling a “waiver in the termination agreement” is concerned, this may well be a possibility. In our opinion, this can be agreed admissibly, as the employee can decide on his rights. However, there is still no case law on this, which is why it has not been finally clarified.
2. To what extent does a financial settlement clause waiving compensation claims due to a breach of the duty to provide information protect the employer?
This primarily protects against any claims for compensation due to a breach of the duty to provide information (for example because the one-month period has not been met). This probably does not protect against the exercise and the associated provision of information, with the corresponding internal expenses. In this respect, it would be advisable to also agree on the above-mentioned “waiver of the exercise of the right to information”. If possible compensation is ruled out, the right to information still persists and, in the event of failure or failure to meet the deadline, there is still the right to lodge a complaint with the competent data protection authority.
3. If it comes to the point that the employer must comply with the request for information: How can the employer protect itself from further costs, in particular claims for compensation?
Provide correct information in accordance with Article 15 GDPR, i.e. in the legally prescribed form and with the appropriate content. It's simple;) Here, it is important that a process for providing information to customers as well as to one's own employees is established and that the respective special features are known.
4. Do you have any other tips? What can employers do in advance to protect themselves from claims made by former employees?
The best thing is, of course, a good employer and employee relationship even right up to the termination process, but this is of course not always possible. In this respect, in addition to employment law scenarios, companies should also address data protection obligations with regard to the employment relationship. The data protection principles of “fairness and transparency” also apply here! As an employer, if you pay attention to this and the processes are right, you really don't have to fear confrontations and problems. After all, it is also true here that you can defend yourself against “abusive conduct” on the part of the employee. This is always the case when it is obviously only “misused” for the purpose of higher severance pay, etc.
Thank you Philipp! :)
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