Works Council’s Disclosure Rights versus Employee’s Data Protection Rights

Created by Ralf Pelz | |  Labor Law

If a works council refers to their monitoring activities according to article 80 sec. 1 no. 1 German Works Constitution Act (BetrVG) and demands specific information from the employer relying on its right to be informed according to article 80 sec. 2 sent. 1 BetrVG, the works council is obliged to set out the concrete normative guideline he intends to monitor as well as the guideline that supports his request for information. Further the works council has to proof that and how processed sensitive personal data in terms of art. 4 no. 1 and 2 General Data Protection Regulations (CDPR) are protected against unauthorised access according to articles 26 sec. 3 and 22 sec. 2 German Federal Data Protection Act (BDSG). If he fails to do so the employer is entitled to refuse providing the requested information.

German Federal Labour Court (BAG), ruling dated 9 April 2019 - 6 ABR 51/17 
Previous instance: State Labour Court Munich, ruling dated 27 September 2017 - 11 TaBV 36/17, Labour Court Munich, ruling dated 8 March 2017 - 24 BV 138/19 

In the relevant case an employer and the works councils have argued, whether the employer was obliged to inform the work council about all cases of pregnancy he was aware of. Background of the inquiry was that the employer has provided pregnant employees the right to object to information being forwarded about their pregnancy and provided a respective sample letter. However, the works council demanded information about all pregnancies as the works council believed that its information, monitoring and supervisory duties were overriding the interests of the employees regarding the non-disclosure of their pregnancy-related data and that the approval of the pregnant employees was not required.

The previous instances agreed with the works council. The Federal Labour Court over-ruled the decision of the State Labour Court and referred the dispute back to the State Labour Court.

The Federal Labour Court has decided, that the works council’s monitoring activities it is assigned with according to article 80 sec. 1 no. 1 and 2 BetrVG and its right to information according to article 80 sec. 2 BetrVG in order to carry out their duties does not depend on the prior consent of the employee and is not within the discretion of the employee.

The information regarding pregnancy data requested by the works council constitutes the processing of personal data according to article 4 no. 1 and no. 2 CDPR that, by way of derogation from article 9 sec. 1 CDPR is permissible in the case of sensitive personal data such as health-related data if “the information is required to exercise their rights or legal obligations according to German Labour Law, social security legislation as well as under social protection aspects”.

“If the works council is entitled to the information under dispute according to article 80 sec. 2 sent. 1 BetrVG, the demanded necessity of data processing exists according to article 26 sec. 3 sent. 1 CDPR.” This presumes that the works council sets out the monitoring activities he wants to execute as well as the reasons why the requested sensitive personal data of the employees are absolutely essential.

Further the works councils has to set out that and how it intends to ensure sufficient data protection as well as safeguarding the confidentiality of sensitive data according to article 26 sec. 3 sent. 3, article 22 sec. 2 CDPR in order to receive information on sensitive health-related data. The employer is barred from laying down specifications to be met by the works council due to its independency. In this respect the works council has its own protection obligations.

Conclusion

In order to meet their obligations a works council is entitled to comprehensive information that is not within the discretion of the individual employee.

In the event of sensitive health-related data the works council is obliged to set out the specific monitoring aims the sensitive data is required for and has to state how sufficient data protection is going to be insured within works council’s area of operations. Suitable protective measures may be:

  • Deletion of confidential data after the works councils’ tasks, e.g. after the maternity protection period,
  • secure storage through password protected computers, data files or the secure storage of hard copies in a lockable cabinet as well as
  • the restriction of access options.

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