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The ELA is proud to welcome our newest member firm: LOGOS  in Iceland!


An unconditional right of the works council to view personnel files infringes the general right of employees to the protection of personality

Submitted by Firm:

Judgment of the Landesarbeitsgericht Dusseldorf of 23 June 2020 in Case 3 TaBV 65/19

The District Labour Court (Landesarbeitsgericht) of Dusseldorf held that a rule in a group works agreement granting a permanent and unconditional right to the chairpersons of the works councils of each work to view the personnel files of employees infringes § 75 (2) of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), and is thus void. Such a right disproportionately and thus inadmissibly impinges on the rights of employees to protect their personality.

Facts of the case

The employer refused to grant the works councils or their chairpersons permanent access to the electronic personnel files for the employees of the respective works despite a provision in the Group Works Agreement on the Introduction and Use of Electronic Personnel Files (GBV EFM). The right of access was not dependent on the consent of the employee. The group works council then sought to assert the right of the chairpersons of the works councils of each work to access the electronic personnel files.

As at the first instance, the District Court in Dusseldorf dismissed the claim of the group works council. The appeal was rejected.

The judgment

In the Court’s view, a general right to view the personnel file violates the employee’s general right to personality under Article 1 (1) in combination with Article 2 (1) of the Basic Law (Grundgesetz). The general right to personality of the employees concerned is disproportionately infringed where the chairperson on the works council is granted a permanent right to access their personnel files without the consent of the employee. The employer and the works council(s) are bound by § 75 (2) first sentence of the Works Constitution Act to protect and support the rights of staff employed at the work to freely develop their personality and this access rule infringes this statutory obligation. As a result, the unconditional right of access is invalid because granting such a broad right of access to the works councils is neither suitable nor necessary for control. This is particularly true because the GBVEFM already grants various other control rights to the works councils.

Consequences for practice

According to the jurisprudence of the Federal Labour Court concerning the performance of statutory duties, works councils normally will not have a right to view the personnel file of an employee in full, which is why care should be taken when including access rights in (group) works agreements. The protection of the employees’ rights to freely develop their personality should be given special attention. It should be noted that even if a rule is suitable for control purposes, it must still be necessary and reasonable.

Our tip

Employers should stand up to the works council if they demand a blanket and groundless right to access personnel files because employers have a duty to protect the rights of employees. Employers will fulfil this duty if they put themselves protectively between employees and employee representatives and only grant these representatives rights of access where they are performing specific tasks under works constitutional law.  

Author: Fee Clemens