According to a decision of the Regional Labour Court of
Düsseldorf dated 7 March 2012 (docket no. 4 TaBV 11/12), an
employer may not arbitrarily access data stored on the works
council's drive of the EDP system.
In the case at hand, the employer had discovered an eight-page
opinion on an ongoing unfair dismissal action on the works
council's drive. Since it assumed that a member of the works
council who was not released from his employment duties had drafted
the document during his work hours and had therefore failed to work
the contractually specified work hours, the employer sought a
judicial declaration to the effect that it could also examine the
document history without the works council's consent and
thereby determine the time of the processing of the document and
In the opinion of the Regional Labour Court of Düsseldorf, the
employer – notwithstanding its ownership of the data
drive – is not entitled to access data of the works
council. The distinguishing characteristic of the shop constitution
is the autonomously structured safeguarding of interests which
enables the works council to manage its data and other written
documents at its own responsibility.
The works council in turn wanted to determine how the employer had
gained knowledge of the written opinion and sought access to the
protocol data on access to the works council's drive. This
request was also rejected by the Regional Labour Court on 7 March
2012 (docket no. 4 TaBV 87/11): The works council already lacked an
interest in legal protection in this case because the source of the
leak was known and it was at the works council's own
responsibility to seal this leak.
The two decisions of the Regional Court of Düsseldorf clearly
illustrate that clear boundaries must also be drawn between the
employer and the works council in the EDP system: ownership of the
drives does not entitle the employee to access data of the works
council without or against the latter's will. Even if these
access possibilities should exist de facto and in observance of
data protection provisions, the employer is well advised not to act
without the consent of the works council. Otherwise, the employer
faces forbearance claims of the works council, and the inability to
use the arbitrarily obtained data in judicial proceedings also
cannot be ruled out.
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