Employees cannot require their employer to provide a copy of all their email communications from and about them.
Since the GDPR came into force, employees have increasingly tried to get employers to reach a settlement or an increased severance payment by asserting claims for information in accordance with Art. 15 GDPR.
An employee who was dismissed by the employer during his probationary period had sued. The employee then demanded not only information about the personal data processed by the employer about him, but also a copy of all his e-mail traffic and all those e-mails in which he was personally mentioned.
The lower court had only granted the employee the right to have the entire e-mail correspondence handed over to the extent that it was personal data that the employer had processed. This is in accordance with the right to information from Art. 15 Para. 1 DSGVO. However, his own electronic correspondence with the employer 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 only named in some way, he has to request certain documents concretize.
The BAG followed this line of argument in its judgment of April 27, 2021 – 2 AZR 342/20. The claim for the provision of a copy of e-mails was not sufficiently specific according to § 253 Para. 2 No. 2 ZPO. The desired e-mails must be identified so precisely that there is no doubt in the enforcement proceedings to which the conviction relates.
Unfortunately, the BAG left open whether the right to a copy pursuant to Art. 15 (3) GDPR also includes the issue of a duplicate of e-mails. In any case, such a claim, if it actually exists, must be asserted either with a sufficiently specific claim or, if this is not possible, by means of a class action.
That is what is lacking here: If the employer were obliged to provide the employee with a copy of his e-mail correspondence and communications that mention him by name, it would remain unclear which copies would have to be provided. “The subject of the conviction would be the performance of an unacceptable act within the meaning of § 888 ZPO, for which the enforcement law does not provide that the debtor would have to swear in lieu of an oath that they have performed it in full”.
Unfortunately, the BAG’s decision is only available as a press release so far. The justification is therefore eagerly awaited.
In any case, the judgment means a restriction of the pressure tool of providing information according to Art. 15 Para. 3 GDPR in the context of dismissal protection processes, which has been popular since the GDPR came into force, in order to increase the willingness to settle or the severance payment.
Michael Wübbeke, LL.M., attorney at law
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