Employee’s information request

Article

Employee’s information request based on Art. 15 EU-GDPR

Possibilities to defend due to improper use

While in principle, the employer must fulfil an employee's information request which is based on Art. 15 EU-GDPR, in individual cases, the employer may refuse to provide the requested information if he can provide concrete evidence of its improper use.

The authors elaborate that the employer may refuse to meet an employee's information request based on Art. 15 EU-GDPR, if the employer can provide evidence that the claim has been used for an improper purpose. Further, the authors provide concrete examples of an abuse of rights.

Starting Point

Since the introduction of the EU-GDPR, it can be observed that in termination disputes, employees raise claims for information based on Art. 15 EU-GDPR with the obvious (sole) aim of using such information claims in negotiations with the employer on an amicable termination of the employment relationship to increase severance payments. The ulterior motive of raising such claims thus often consists in having the employer “buy off” such information requests in order to avoid the "annoyances" typically associated therewith as part of a severance package, which is more attractive for the employee.

Legal Framework for the Information Request

In the first step, the employee's information request is directed towards the employer confirming that he has processed the employee's personal data in the course of the employment relationship. If the employer confirms such processing of personal data – which will practically always be the case – the employee can in the second step request detailed information on the processing of personal data.

Possibilities of Defence for the Employer

If the employer invokes an interest in secrecy worth protecting (e.g. protection of internal sources within the framework of a whistle-blower system), he may oppose the claim for information with a legitimate need for secrecy.

In addition, the legislator has confirmed that an improper use of the information request can be given in cases of obvious unfoundedness or frequent repeated filing of applications and in these cases grants the employer a defence.

The improper assertion of the information request must be assessed on the basis of an individual determination, taking into account all circumstances of the specific individual case, whereby the employer bears the burden of proof and presentation for the inappropriate use of the information request by the employee.

In this respect, the employer can invoke circumstantial evidence, which supports abusive conduct. The following factors can typically be used as circumstantial evidence:

  • Timing: An improper use will be assumed in particular if the information request is filed after the commencement of the settlement negotiations with a compensation claim that is significantly above the usual compensation rate or deviates significantly from the compensation already offered.
  • Conduct: An improper use will also be presumed where the employee has repeatedly asserted the claim to information and lastly made it shortly before the commencement of a termination lawsuit (i.e. in a period of less than six months before such lawsuit commenced) and the employer had regularly fulfilled information requests in the past. 
  • Attorney-at-law: Finally, the approach - well-known in practice and courts - of the employee's attorney-at-law in dismissal disputes between other employees of the same employer or other employers can be a relevant indicator.

Conclusion

In principle, the employer must fulfil the employee's information request according to Art. 15 EU-GDPR even where such request is made during a dismissal dispute. In individual cases, however, the employer can and will be able to refuse to comply with the information request on the basis of confidentiality interests worthy of protection or by raising a plea if he can provide concrete evidence that the claim has been improperly used.

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