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"There is nothing in the world, which I could not do without at any moment."
Albert Einstein
A very important area in the digital age is the personal file in a company or Authority. She was also given in the AGG or other laws no special attention, even though they will decide more and more about the fate of a professional development. In particular, a question for bullying victims, which have laid the perpetrators even for tracks in the future. Especially in a country like Germany which is of such crucial importance that we must pay as a nationwide board of trustees for an anti-bullying organization or a foundation to a high level of attention. Politics, unions, attorneys and privacy advocates are apparently no match for the mentally and legally missing almost an entire case in the classical sense of the European human rights charter,
let alone a legislation strengthens the dignity of man.
Here is an exciting decision of BAG on health data:
personnel file - storage of health data
"BAG current: operational change - burden of proof also applies to notice of amendment:
The legal assumption, it is assumed that at an operational change in favor of the employer that the Termination due to urgent operational requirements is due to apply to a decision by the highest German Labor Court (Judgement of 19.06.2007 - 2 AZR 304/06) of yesterday, not only in the event of termination but also for a notice of amendment, provided that a social plan is . A summary of this important decision related to arbeitsrecht.de already here.
personnel file - storage of health data
The facts in the Federal Labour Court (BAG, ruling of 12.09.2006 - 9 AZR 271/06) it was a case decided by the confidentiality of sensitive data about personality and health of a worker. This suffered from an addiction that has been medically treated accordingly. The records of the inpatient treatment were included in the employer's personal file. The affected employee by his employer demanded the removal of the letter from the personnel file. He feared for whereabouts of the letters in the personnel file drawbacks for his career, he also saw himself violated his personal rights.
After the employer refused to comply with the request, the applicant applied to the Labour Court, first remove the corresponding letter without replacement from the personal file. In the last instance he followed only his alternative proposals, the sensitive information in a sealed envelope to attach, with only the Director of Human Resources or his deputy should be opening right and, each opening with the date and reason is to be noted on the envelope.
The decision
The complaint was ultimately successful. Where sensitive health data included in the personnel file may be, the employee is entitled to have due regard to its interests. The BAG came after an extensive consideration of the mutual interests to the conclusion that the defendant employer has with the unprotected storage of sensitive health data in the personnel file of the plaintiff unlawfully violated the personal rights.
The BAG, however, was not so much that the sensitive personal data have to remove it from the personal file. It condemned only the employer to any letter to indicate that the disease of addiction to the applicant separately kept in a sealed envelope and the right to inspect the Personnel manager and his deputy limit.
removal of unprotected health information
The BAG affirmative then the fundamental right of a worker (according to § § 12, 862, 1004 Civil Code) to remove the unprotected storage to their health records in the personnel file, because in this way to be guaranteed by Articles 1 and 2 GG general right to be interfered with. This prevents the collection and dissemination of findings on the health status, mental state and character.
The employer is therefore required to keep sensitive data on employees in a particular way, they face random regard to protect and to restrict the information authorized persons.
right to full personnel file
is not contrary to the legitimate interest of the employer to the completeness of the personnel file. Because the personnel file is complete. If the health information needed to initiate personnel actions, they can be viewed by authorized persons. The employer's rights to freedom of occupation under Article 12 paragraph 1 GG and freedom of expression under article 5, paragraph 1 GG is not impaired. The BAG
affirmative therefore a legitimate interest of the employer as to the completeness of personnel records kept by him. This applies to the court's opinion also specifically for sensitive data on the personality and health of the worker as an addictive disorder. For such diseases could with negative prognosis "a sick justify termination of the employee social" (§ 1 of the Consumer Protection Act).
As the employer shall ensure the protection of sensitive personal data, he determined to rule themselves. Failing this, is the right to determine appropriate protection measures to the employee of (legal ideas from § § 316, 264 Section 2 BGB).
Difficult storage
The proposal of the BAG, sensitive health data separately in a closed Envelope to store sounds plausible at first. On closer examination, however, come in times of computerized personnel records management, as practiced in many companies already fast doubts about the practicality of.
also represents a sealed envelope, a visual identification, which may penalize the employee. Finally noticed everyone who sees the personal file, immediately sealed envelope and know that sensitive data is hidden.
collecting passion is supported
also tried the BAG in the underlying case, the priority right of employers to consolidate, all the data available to it, workers to collect stock in the personal file. And there were no distress so only on the alternative claim of the plaintiff to protect the health data to decide - that are concrete measures for its preservation.
Dr. Klaus Kammerer suspected in the current June issue of the journal for Labour and Labour Law ", that the 9th Senate saw the BAG urged "over the dispute and the legal protection objectives of the parties also emphasized the rights of employers to unimpeded collection of employee data.
workers' privacy has left outside
totally ignores the BAG in connection with the collection of personal data by itself, however, the developed restrictions on the issue and the employer's right to information as a form of data collection as well as the European Data Protection Directive, and subsequently the Federal Privacy Act (the Act). Because
been the lack of statutory regulations on data protection workers are workers and employers still rely, to be guided by the relevant case law. Despite the inaction of the legislature but is just the electronic storage of personal data in the employment relationship - as already mentioned - is becoming ever more important.
opportunity missed
Unfortunately, the BAG does not use this opportunity to in-force has been a long time from many required employee data protection law, law making continuing to act. Researchers from the basic formulation of the Court of the overriding interest of the employer in collecting sets of personal data for future reference rather to the suspicion that so that other issues should be swept aside quickly.
contradicts So this collection of information to the fundamental right to informational self-determination of the worker and thus the current jurisdiction of the BAG to ask questions of the employer.
committed Furthermore, the EC Data Protection Directive 95/46/EC, which explicitly prohibited in Article 8, the processing of health data, the Member States in accordance with directives Development of the law. This policy notes that in the Member States have already reached the level of data protection must not be exceeded, but rather a high level of protection should be ensured.
in BDSG was now clear that the processing of personal data in personnel records falls within its scope (§ 12). For employee data then applies the principle that the purpose of such employment relationship determines the processing and usage limits. Personal employee data may not therefore be limited to the purpose for which they were collected, is used. Data used for this purpose are no longer required to delete consequently.
disease Kündigung
's indication of BAG in its ruling that sensitive health data is needed for possible future disease-related termination and therefore are kept is understandable. For such a measure, however, are the first sickness absence in itself sufficient. based on this, the employer may then ask the employee to provide appropriate
certificates in order to then undergo an occupational health investigation.
is not to be forgotten in a planned disease-related notice, that before an integration management (§ 84 section 2 SGB IX) is carried out. Then the employer with a longer illness of an employee has to clarify how the disability will be overcome and prevented if possible by what services or support re-work disability and the workplace can be obtained. Without this measure, the trend in the law should in future disease-related dismissals hardly be effective "* *
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