Federal Labour Court, 15.11.2012, Ref.: 6 AZR 339/11
According to both case law and labour law literature, employees have certain obligations to inform their future employer during the job interview.
A distinction is made between so-called disclosure obligations and so-called information obligations.
Disclosure obligations are those notification obligations that are incumbent on the employee without a specific request from the employer. These obligations relate in particular to facts which are particularly important for the employer to know and which the employer must therefore learn from the applicant in good faith (Section 242 BGB).
The duty to provide information, on the other hand, refers to the duty to answer specific employer questions.
Such obligations to provide information in particular are repeatedly the subject of supreme court rulings, as inadmissible questions are often asked by the future employer, which are then (permissibly) answered incorrectly by the employee and ultimately lead to the employee being dismissed.
In particular, questions relating to the following issues repeatedly concern the courts in the context of actions for unfair dismissal:
- Question about the employee's state of health
- Question about the employee's previous remuneration
- Question about previous salary garnishments
- Question about the employee's financial circumstances
- Question regarding the employee's affiliation to a party
- Question regarding the employee's membership in a trade union
- Question about the employee's criminal record
- Question regarding the existence of a severe disability of the employee
The above-mentioned judgement of the Federal Labour Court dealt with the question of whether the employer was allowed to ask the employee in a personnel questionnaire about discontinued investigation proceedings.
Facts of the Case:
The plaintiff was a teacher at a secondary school
The plaintiff, born in 1961, had applied for a teaching position at a secondary school in North Rhine-Westphalia in the summer of 2009.
Before he was hired, he was asked to fill in a form to declare whether he had a criminal record and to confirm that he was not currently under investigation by the public prosecutor's office or had been within the last three years.
Plaintiff had given assurances before being hired that he had no criminal record
The plaintiff signed this form without having provided any information on possible investigation proceedings.
A few months later, the plaintiff was hired. Just one month later, the responsible district government received an anonymous tip-off, which prompted it to ask the public prosecutor's office to report any incidents relevant to criminal law.
The list of cases that was then sent showed several investigations that had been discontinued in accordance with Sections 153 et seq. StPO (Code of Criminal Procedure).
After becoming aware of several investigations, the plaintiff was dismissed
The defendant state then terminated the employment relationship for cause, or alternatively with notice, on the grounds that the plaintiff had answered the question about investigation procedures incorrectly.
The plaintiff defended himself against the dismissal with an action for protection against dismissal and argued that he did not have to disclose any investigation proceedings that had already been discontinued in the interview.
The plaintiff won at first and second instance
The labour court ruled that the extraordinary dismissal was invalid and the regional labour court also ruled that the ordinary dismissal was invalid. The state appealed this decision to the Federal Labour Court.
Decision of the Federal Labor Court
The Federal Labour Court also followed the plaintiff's opinion.
According to the data protection regulations in North Rhine-Westphalia, the collection of data, such as the unspecified question about investigation procedures, is only permitted if it is authorised by a legal provision or if the person concerned consents.
Questions about discontinued investigations are not permitted under data protection law
Such information on completed investigation proceedings is not necessary for the application for a position as a teacher and is therefore not permitted by § 29 of the Data Protection Act of North Rhine-Westphalia.
The termination based solely on the untruthful answer to the question about investigation proceedings therefore violated the objective value system of the German Basic Law, as expressed in the right to informational self-determination, which is a manifestation of the general right of personality (Art. 2 para. 1 GG). It was therefore invalid pursuant to Section 138 (1) BGB.
Source: Federal Labor Court
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