Employers are now increasingly confronted with claims for information from (former) employees. However, it has not yet been clearly clarified what exactly can be the subject of the right to information and to what extent it must be complied with.
This presents employers with several major challenges:
In particular, the scope of the claim for surrender or transmission of a copy of the data has still not been decided by the highest court. The decisions of several state labor courts in recent years show that there are many open questions:
The German Federal Labor Court (“BAG”) has now, in its ruling of April 27, 2021 (only the court’s press release on the ruling is available so far), dismissed an action brought by an employee against his former employer for the transfer of a copy of data pursuant to Art. 15 para. 3 GDPR in the form of his e-mails sent in the course of his employment. The employee argued that his right to a data copy also included all of his work-related e-mails.
The BAG rejected the claim on the grounds that the claim was too vague. If the e-mails, a copy of which is to be provided, are not designated so precisely that it is undoubted in the enforcement proceedings to which e-mails the condemnation refers, the requirements for the definiteness of the claim are not fulfilled according to. The employee would therefore have to sue for information at the first stage in order to substantiate the request for surrender. The BAG apparently left open the question of whether the e-mails should be released at all.
The specific scope of the rights to information under data protection law thus remains unclear. Employers must therefore expect, not least because of the different legal opinions of the supervisory authorities, that in the end they would actually also have to hand over copies of all e-mails. Employers are therefore strongly advised to,
in case of doubt about the scope of the duty to provide information, seek legal advice promptly in order to be able to meet the one-month deadline.
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