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Negotiating employee data protection policies with works councils

May 2013

Although employee data protection continues to gain rapidly in importance and legislative negotiations have been ongoing for several years, to date, no special data protection law for employees has been established in Germany. As a consequence, employee data protection in Germany is still regulated under general statutory provisions, ranging from provisions in the Federal Data Protection Act (“Bundesdatenschutzgesetz”) to respective provisions in the Works Constitution Act (“Betriebsverfassungsgesetz”). This situation is often quite confusing for employers running businesses in the German jurisdiction, especially when companies from foreign jurisdictions enter the German market.

Co-determination rights and employee data protection

Information iconTaking these various statutory provisions into account, there are numerous measures to implement by an employer which regularly trigger the works councils’ rights for information, supervision or even co-determination in the field of employee data protection. In general, the works councils have the right to co-determination in matters affecting organisational structure, personnel decisions, and policies regulating workplace and individual conduct within the company (works councils would, for example, have to be involved in the supervision of evaluation of employee performance, e.g. for the purposes of salary calculations). This means that any proposed policy or general measure of the employer must first be approved by the works council in order to be implemented by the company. The employer is obliged to keep the works council fully informed in matters relating to operations and personnel planning so its participation in drafting a company policy is guaranteed. The intention of this is to ensure that the works council can cooperate with the management to avoid potential disputes and raise relevant concerns or other suggestions. Figuring out the ‘whys and wherefores’ of such co-determination rights in terms of employee data protection is, however, not always an easy task for an employer.

Statutory restrictions

In addition to issues arising from a works council’s co-determination rights, the statutory provisions of the Federal Data Protection Act must be observed by employers. A violation of these provisions by the employer may result in civil and criminal liability as well as procedural consequences (such as inadmissibility of evidence) to the detriment of the employer.

Negotiations with the works council may be advantageous for the employer

Taking everything into account, negotiating employee data protection policies in the form of a shop agreement with the works council may be of real advantage to employers.

On the one hand, any legal uncertainties concerning liabilities in terms of statutory restrictions will be removed as the Federal Data Protection Act acknowledges shop agreements to be sufficient to legally allow the use of personal data on the grounds of general consent.

HandshakeOn the other hand, the employer will not have to obtain the works council’s prior consent for every single measure which may have an impact on employee privacy rights. The potential for disputes with the works council on questions regarding any co-determination rights will, consequently, also be reduced.

The contents of a data protection policy must be in strict accordance with the Federal Data Protection Act in order to be legally valid. Thus, negotiations with the works council should be conducted by a German employment lawyer with the aim of achieving a valid and balanced policy in legal terms. Negotiating a works agreement with the works council on the subject of employee data protection which gives voice to the respective rights of all participants, is highly recommended. 

If you have any questions on this article or would like to propose a subject to be addressed by the Global Data Hub please contact us.

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Dr. Kilian Friemel

Dr. Kilian Friemel      

Lukas Müller

Lukas Müller

Kilian and Lukas look at the role of works councils in negotiating employee data protection policies in Germany.

"Figuring out the ‘whys and wherefores’ of co-determination rights in terms of employee data protection is not always an easy task for an employer."