Employees cannot require their employer to provide a copy of all of their email communications from and about them.
Since the GDPR came into force, employees have increasingly tried to get employers to make a settlement or an increased severance payment by asserting claims to information in accordance with Art. 15 GDPR in the context of dismissal protection processes.
An employee who was dismissed by the employer during his probationary period had sued. The employee thereupon not only requested information about the personal data processed about him by the employer, but also a copy of all e-mail traffic from him as well as all those e-mails in which he was personally mentioned.
The lower instance had only granted the employee the right to surrender the entire email correspondence insofar as it concerns personal data that the employer had processed. This is in line with the right to information from Art. 15 Para. 1 GDPR. His own electronic correspondence with the employer, on the other hand, does not have to be made available to him because he knows it himself. If, on the other hand, the employee wants to see further e-mails in which he is merely mentioned in some way, he must request certain documents to concretize.
The BAG endorsed this argument in its judgment of April 27, 2021 – 2 AZR 342/20. The claim for the surrender of a copy of e-mails was not sufficiently determined in accordance with Section 253, Paragraph 2, No. 2 of the German Code of Civil Procedure. The coveted e-mails must be described so precisely that it is unequivocal in the enforcement proceedings to which the conviction relates.
The BAG unfortunately left it open as to whether the right to provide a copy in accordance with Art. 15 (3) GDPR also includes the issuing of a duplicate of e-mails. In any case, if such a claim actually existed, it had to be asserted either with a sufficiently specific request for action or, if this was not possible, by way of a step action.
It is missing here: If the employer were obliged to give the employee a copy of his e-mail correspondence as well as such messages that mention him by name, it would remain unclear which copies would have to be given. “The subject of the conviction would be the undertaking of an unjustifiable act within the meaning of § 888 ZPO, for which the enforcement law does not provide that the debtor would have to take an oath instead of affirming that he has performed it in full”.
The decision of the BAG is unfortunately only available as a press release so far. The justification can therefore be eagerly awaited.
In any case, the judgment means a restriction of the pressure medium, which has been popular since the GDPR came into force, of providing information in accordance with Art. 15 (3) GDPR within the framework of dismissal protection processes to increase the willingness to settle or the severance payment.
Michael Wübbeke, LL.M., lawyer
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