A stricter regime for profiling07 June 2016
HL Launches German Language Privacy Blog; German Court Sets Criteria for Employee Monitoring
The German Federal Labor Court (Bundesarbeitsgericht) has published its reasoning underlying a June 2013 decision in which it declared invalid the dismissal by a large supermarket of an employee who was found in possession of stolen goods. According to the Court, the factual evidence leading to the dismissal—obtained upon inspection of the employee’s workplace locker without the presence of the employee—was gathered in violation of the employee’s right to privacy established by the German Federal Data Protection Act (Bundesdatenschutzgesetz – "BDSG"). The ruling represents a shift in case law regarding employee data privacy were German courts are likely to exclude from civil law proceedings information collected in violation of statutory data privacy requirements. Companies operating in Germany should be aware of these requirements in order to avoid losing lawsuits as a consequence of non-compliance with strict local data privacy rules.
The Court’s finding focused on proportionality between the employer’s actions and the suspected wrongdoing of the employee as required by Section 32(1) of the BDSG and clarifies key criteria for employer conduct when collecting or using information about an employee for use as grounds for dismissal:
- The employer’s aim must be reasonably achievable through the method of collection or use applied;
- There must be no equally effective means available to the employer for obtaining the information that would have a lesser impact on the employee’s right to privacy; and
- The collection or use of employee data must be proportionate to the reason for collection or use.
Working from the above criteria, the Court considered the employer’s “secret” inspection (a deeper intrusion upon an employee’s right to privacy than an inspection in the employee’s presence) of the employee’s workplace locker to be unreasonable, as it did not opt for the most moderate means for investigation.
It is particularly noteworthy for companies that the breach of employee data protection regulations in this case meant that none of the factual submissions could be used in the dismissal proceedings. In the event of specific suspicions or ongoing investigations, employers should not issue a dismissal until such dismissal can be based on evidence that complies with the criteria set out by the Court.
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