Termination for cause of a works council member following public disclosure of process files with sensitive data

April 2022 · Estimated read time: mins

Urteil des LAG Baden-Württemberg vom 25. März 2022

The disclosure to the company public of pleadings of the opposing party from a self-initiated court case, which contain health data of other employees, entitles the employer to terminate the employment contract for cause without further notice. This also applies if the employee to be terminated is a member of the works council.


An employer was allowed to terminate for cause a long-time employee and works council member without notice after he had disclosed to the company public the pleadings of the opposing party from a court case he had initiated. The disclosed pleadings contained health data of other employees. The encroachment on the personal rights of those affected was not justified, ruled the Baden-Württemberg Regional Labor Court (LAG) in a recent decision dated March 25, 2022 (7 Sa 63/21).


The case

The plaintiff had been employed by the defendant since September 1997. He had been a member of the works council since 2006 and an exempt works council member since 2014. In the underlying case, the parties disputed the validity of a termination for cause already issued in January 2019 and to which the works council body had given its consent.


The employer justified the termination it had issued by claiming that the employee had violated provisions of data protection law by publishing procedural files from previous proceedings for protection against dismissal between the parties, in particular pleadings of the company. These pleadings contained, among other things, personal data, in particular also health data, of other employees of the employer, with full mention of their names. The plaintiff had disclosed this personal data to a larger distribution group by providing access to a so-called Dropbox.


The plaintiff employee considered the termination to be invalid, as there was no regulation that required process files to be kept secret. In addition, a data protection violation was also to be rejected because he acted exclusively within the scope of "personal or family activities" in view of Article 2 (2c) of the GDPR and acted in his own legitimate interest. This is because he is entitled to comment on the case and to provide information, particularly with regard to the allegations that deeply incriminate him as a family man and works council member.


The labor court had already dismissed the action for protection against dismissal at first instance in its ruling of August 4, 2021. The plaintiff's appeal against this ruling was also unsuccessful. The LAG gave the following reasons for its decision: Anyone who, in the context of legal proceedings initiated by him, discloses certain pleadings of the opposing party in which data, in particular also special categories of personal data (health data), are processed, to the company public by using a link provided and thereby also opens up the possibility of further dissemination without having a justifiable reason for doing so, unlawfully and culpably violates personal rights of the persons named in these pleadings. The exercise of legitimate self-interest claimed by the plaintiff did not exist in any case insofar as the written reasons for the decision of the first-instance labor court dealing with the case were not yet available on the day the plaintiff provided the Dropbox link and the plaintiff also still had the opportunity to appeal against the decision in order to present his point of view in these proceedings.


The complete reasons for the decision are not yet available at the time of publication of this article.


Relevant reason for termination

It is not clear from the press release whether the LAG considered the violation of the GDPR as such to be less decisive for the justification of the termination than the violation of personal rights of the employees named in the published pleadings. In any case, however, it considered the facts of the case to be sufficient to justify the termination for cause without notice of the long-serving employee and works council member. 


The health data published, among other things, fell into special categories of personal data, the processing of which is subject to special requirements under Art. 9 of the GDPR. The plaintiff's objection that there is no norm expressly prohibiting the publication of civil court case files is nevertheless correct. Labor court hearings also take place in public as a matter of principle. It therefore remains to be seen how the LAG justifies the judgment in detail.

What is remarkable about this case is that the works council committee had given its prior consent to the termination of the works council member. This is unusual as well, but was necessary in this case, as the termination of a works council member is inadmissible under Section 15 of the German Unfair Dismissal Act (KSchG), unless there are facts that entitle the employer to terminate the employment relationship without notice for good cause and the aforementioned consent of the works council has been obtained. If the works council had not given its consent in the present case, the employer would have had to apply to obtain the consent of the works council via a specific and time-consuming court procedure.


After all, it can be stated that the LAG confirms the high priority of the protection of personal rights and sensitive (health) data and thus instructs employees in particular to exercise caution when handling such data. At the same time, however, employers should also remember that violations of the GDPR or the personal rights of employees and third parties can give rise to considerable risks of damages. In addition, there is a risk of prohibitions on the use of evidence in labor court disputes, which can lead to a defeat in dismissal protection proceedings, as shown, for example, by a recent ruling of the LAG Berlin-Brandenburg (ruling dated September 11, 2020 - 9 Sa 584/20).


Finally, the ruling of the Baden-Württemberg Regional Labor Court also shows that it is by no means impossible to give extraordinary notice of termination to a works council member in the event of serious misconduct. It also makes clear the great importance attached to data protection and the associated protection of personal rights. 


This decision should therefore encourage employers not to shy away from extraordinary termination in the event of gross misconduct by works council members.

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