Federal Labour Court specifies prerequisites for works council’s right to information
According to the Federal Labour Court, if information requests relate to a specific category of personal data, the works council may only lawfully make use of its right to information if it ensures the application of adequate specific protection measures.
Recently, German labour courts needed to on various occasions deal with the question whether an employer may refuse to respond to information requests of the works council by (merely) referring to data protection regulations. Now, the German Federal Labour Court (1 ABR 51/17) had to decide on an information request according to sec. 80, para. 2., 1. sent. German Works Constitution Act, which concerned sensitive data, namely the pregnancy of an employee.
In the past, the employer regularly informed the works council about the pregnancy of employees. As of 2015, however, pregnant employees were offered the possibility of formally opposing to the disclosure of information, so that the works council did no longer receive any note of the pregnancy of employees who had made use of such possibility.
The Federal Labour court referred the matter back to the competent regional court. However, the reasoning of the resolution contains important guidance for the practical handling of the works councils right to information in such constellations:
First, the works council must in each individual case involving sensitive data explain why the information that it requests is necessary to fulfill the works council’s tasks. This, in particular, holds true if the works council claims that obtaining the information was or is necessary to monitor the employer’s compliance with concrete requirements and obligations/prohibitions in favor of employees. Second, if the request concerns sensitive data in the sense and meaning of data protection regulations, the works council must set out that in its sphere of responsibility it guarantees a sufficient data protection level. The fact that the expecting employee opposed to the disclosure of information as such does not hinder the transfer.
The Federal Labour Court correctly determines that when disclosing sensitive data to the works council, the employer has no means of influencing the fulfillment of the obligation to ensure adequate and specific protection measures as provided for in sec. 26, 3. sent. in conj. with sec. 22 para 2 German Data Protection Act. Due to the works council’s autonomy, the employer may also not stipulate any requirements in that respect.
In case the employer is not positively aware of the data protection level applied to the handling of data by the works council, the employer could decline the disclosure of data by making reference to the alleged missing or insufficient protection. This procedure would certainly result in a juridical clarification. Such clarification process in return would very likely not enhance the relationship between works council and employer. It would therefore seem recommendable that when making available sensitive data to the works council, the employer indicates vis-à-vis the works council that he assumes that an adequate data protection level is guaranteed with the works council.