Be careful when handling personal employee data!

Protection against dismissal for works council members

Because of the position they hold, works council members can only be dismissed under special circumstances. Section 15 of the German Employment Protection Act (KSchG) states that ordinary dismissal of a works council member for personal reasons or due to their conduct is not permitted, for example.

Yet at the same time, works council members do not enjoy absolute protection against dismissal: Massive misconduct can justify extraordinary dismissal. In this respect, works council members are not different to regular employees.

Extraordinary dismissal requires circumstances due to which the employer cannot reasonably be expected to continue the employment relationship until the expiry of the notice period or until the agreed termination of a fixed-term employment relationship, taking into account all the circumstances of the specific case while also weighing up the interests of both contractual parties.

An extraordinary dismissal requires some form of incident to be lawful.

But does forwarding an email with personal employee information to a private email address fall into this category?

Voters list forwarded to himself

This was the issue before the Mannheim Labor Court: A works council member and previously also a substitute member of the company’s election committee had forwarded an email from his work account to his private email address prior to the works council election in 2022. The email included a voters list with the personal information of more than 500 colleagues. This list contained information such as first names and last names, home addresses, date of birth, starting date at the company, end of the contract, and nationality.

The employer found this out by chance when the company discovered the e-mail after asserting a GDPR request for information from the works council member.

The works council member rejected amicable termination of the employment relationship by a termination agreement, whereupon the employer terminated the employment relationship for due cause and without notice following approval by the works council.

The works council member objected and took the case to the labor court. He argued that he was only able to check the list at home by forwarding it to his private email account as he was unable to access his work account from home. In addition, the employer had learned of the incident in an inadmissible manner. The employer was not permitted to access his work email account without the involvement of the works council. Hence, the dismissal without notice was invalid.

Forwarding to private email account: important reason

The labor court did not agree with these arguments and ruled that the extraordinary dismissal was effective.

The court initially regarded forwarding the email to a private email account as due cause for extraordinary dismissal. Forwarding this email containing personal information constituted a blatant breach of contract. The employer is responsible for the careful handling of the employees’ data and forwarding the email had removed the sensitive, protected information from the employer’s control. The court did not accept that the breach of contract was related to the exercise of the office of election committee member. In fact, the court stated that even greater sensitivity is required when handling personal information in this context.

Nor did the court acknowledge a ban on the use of evidence: The employer had accessed the emails in the course of compiling the information for the works council member’s request for information. He could not invoke the confidentiality of the emails as he had requested the release of the data through his request for information.

The case remains exciting. The appeal against the decision of the labor court is pending with case number 12 Sa 33/23.

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