Federal Labour Court, 16.11.2010, Ref.: 9 AZR 573/09
It is common practice for employers to create a personnel file for each employee containing application documents, employment contract, references, interim appraisals, warnings, etc.
This personnel file is a particular target of disputes and lawsuits between employees and employers when the removal of any warnings is under discussion. However, the employee also has numerous other rights with regard to the personnel file, which result from the employer's duty under individual law to respect the employee's personality. For example, only certain persons may inspect the personnel file, the employee may in principle inspect the file, the employee may have counterstatements included in the file, etc. If the employer fails to comply with these requirements, this may give rise to claims for damages by the employee. These regulations also apply to electronic or digital personnel files, which are now becoming the norm. A much-noticed ruling by the Federal Labour Court on 16 November 2010 has now dealt with the question of whether an employee has a right of inspection even after termination of the employment relationship.
FactsThe plaintiff (employee) was employed by the defendant in a managerial position. After termination of the employment relationship, the plaintiff received a reference from the defendant (employer) which, in his opinion, did not correspond to the work he had actually performed. This led to a dispute over the reference, which was settled. In the course of this legal dispute, a personnel officer stated that there were reasons that indicated a lack of loyalty on the part of the plaintiff. The plaintiff then demanded to see the personnel file. The defendant refused this and justified its view by stating that there was no need for legal protection for the claim as the reference dispute had ended. The plaintiff then brought an action for access to the personnel file before the labour court and subsequently before the regional labour court. Both courts dismissed the action. The plaintiff then lodged an appeal with the Federal Labour Court.
Federal Labour CourtThe BAG in Erfurt has now ruled in favour of the employee in the above-mentioned judgement. However, a claim does not follow from Section 34 of the Federal Data Protection Act, as asserted by the plaintiff, but from the employer's contractual duty of consideration (Section 241 (1) sentence 2 BGB). This is the employer's obligation to take into account the welfare and legitimate interests of the employees. This also includes the right to informational self-determination resulting from the employee's general right of personality, which also has an effect beyond the employment relationship.
Source: Federal Labor Court
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