Data protection violations as a reason for dissolving the works council

The breach of data protection obligations by the works council constitutes a gross breach of its statutory duties, which may constitute grounds for its dissolution within the meaning of Section 23 (1) sentence 1 BetrVG. This was decided by the Elmshorn Labor Court (ArbG) in its ruling of 23 August 2023 (Ref. 3 BV 31 e/23). The decision is not yet legally binding.

Background

The employer and more than a quarter of the workforce asserted the dissolution of the works council before the ArbG. This was based – in addition to several other points – on the fact that the works council shared the health data of two employees at a works meeting and printed out and filed all duty rosters, sickness notifications and vacation requests.

Reasons for the decision

The ArbG considered the mass storage of employee data to be a breach of confidentiality obligations and the obligation to protect data. The works council was also obliged to keep personal data confidential.

By disclosing health data, the works council breached its duty of confidentiality, even if the incidents had already "made the rounds" or had occurred as accidents at work. In doing so, the works council violated the general personal rights of the employees concerned.

By printing out and filing the duty rosters, sickness notifications and vacation requests, the works council is effectively keeping a double personnel file. This storage is already questionable. According to the ArbG, the works council is also required to keep data to a minimum. The works council is not entitled to permanent access to the personnel file, as this would disproportionately interfere with the general personal rights of employees (see LAG Düsseldorf, decision of 23.06.2020 - 3 TaBV 65/19). Even if it is necessary to view the documents for a longer period of time in order to monitor driving times and rest periods, for example, this does not justify the filing of a second working time record. The works council can also request access to the documents from the employer. The double bookkeeping by the works council violates the principle of data economy.

Among other things, the ArbG considered this breach to be a gross violation of the works council's statutory duties, which may constitute grounds for termination within the meaning of Section 23 (1) sentence 1 BetrVG. A reason for dissolution of the works council also arises if individual violations themselves do not constitute grounds for dissolution within the meaning of Section 23 (1) sentence 1 BetrVG, but the overall view of the violations of the law shows that the works council's performance of its duties is unacceptable. In the present judgment, the dissolution of the works council was based on a large number of legal violations, in particular the violation of data protection regulations.

Outlook

The obligation of the works council to observe data protection is enshrined in law in Section 79 a BetrVG. However, Section 79 a sentence 2 BetrVG also stipulates that the works council is not a data controller within the meaning of Art. 4 No. 7 GDPR, but that the employer is liable for data protection violations by the works council (see our Data Protection Update No. 101). The judgment of the ArbG expresses the fact that a breach of the obligation to observe data protection can nevertheless have far-reaching consequences for the works council. The ArbG did not have to decide here whether a breach of data protection principles alone can justify the dissolution of the works council. In another case, however, the ArbG Iserlohn considered the extensive transmission of data to be a gross breach of duty by the works council, which alone constituted grounds for dissolution within the meaning of Section 23 (1) sentence 1 BetrVG (ArbG Iserlohn, decision of 14.01.2020 - 2 BV 5/19).

If, in addition to violations of data protection law, the works council also commits other gross violations of the law, this total number of violations constitutes all the more grounds for termination within the meaning of Section 23 (1) sentence 1 BetrVG.

In addition to possible claims against individual works council members for breach of data protection obligations, the employer is therefore also entitled to dissolve the works council as a sanction, which may also have to be considered from a compliance perspective.