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Germany: GDPR Implications: Employees Right To Have Warning Letters Removed after Termination of Employment

Authors: Verena Braeckeler-Kogel, MAES (Basel) and Meike Christine Rehner

After the conclusion of an apprenticeship, the apprentice claimed removal of a reprimand from his personnel file, provision of information about working hours and personal data, as well as payment of compensation for the omission of information under Article 15 of the GDPR.

According to the Labour Court of Baden-Württemberg, employees now have the right, under Article 17 of the GDPR, to request the removal of warning letters from their personnel files after the termination of their employment. Contrary to previous assumptions, such a claim is not deemed inadmissible but rather can be substantiated under the GDPR. The court emphasized the applicability of the GDPR to personnel files, interpreting the concept of a “file” broadly, covering even traditional personnel folders.

Moreover, the ruling emphasizes that compensation claims under Article 82 of the GDPR can be justified merely by the employer’s awareness that an employee is exercising their rights under Article 15 of the GDPR. A prior express request for information, as traditionally required by the Federal Labour Court, is not mandatory. The court further clarified that setting an insufficient deadline for information disclosure does not render the employee’s request void. Instead, the deadline according to Article 12(3) of the GDPR, which prescribes a one-month period, has to be applied.

The practical implications of this decision are significant. Employees now possess a clearer path to exercising their GDPR rights post-employment, ensuring their personal data is appropriately handled, and having the right to seek compensation for any delays in information disclosure.

Practical Points

  • Employers need to be cognisant of employees’ rights under the GDPR even after the termination of employment. Personnel file management practices need to be regularly reviewed and updated to comply with evolving interpretations of GDPR in labour court decisions.
  • If an employee requests information disclosure under the GDPR, the deadlines according to GDPR standards must be observed to prevent potential compensation claims.