LAG Saxony on the removal of a warning after termination of the employment relationship

In its ruling of March 31, 2023 (Case No.: 4 Sa 117/23), the Saxony Regional Labor Court decided that there is no legal interest in having a warning removed from the personnel file after termination of an employment relationship.


1. facts

The parties dispute the removal of two warnings from the personnel file. However, the employment relationship of the plaintiff employee was terminated before the action was filed. The employee had received two warnings in the terminated employment relationship because she had violated her contractual duties. She wanted to have these warnings removed by filing a lawsuit with the labor court.

The labor court had dismissed the action. The plaintiff employee lacked the need for legal protection because the employment relationship had been terminated in the meantime.


Decision 2

The Saxony Regional Labor Court confirmed the decision of the labor court. It was acknowledged that the employer's duty of care can still give rise to rights and obligations after termination of the employment relationship. However, after termination of the employment relationship, the weighing of the interests of both parties regularly leads to the fact that the employee is no longer entitled to the removal of a wrongfully issued warning. This does not apply only if the employee can demonstrate and, if necessary, prove that the warning could still harm him or her after termination of the employment relationship.

The plaintiff employee had not submitted the existence of such an exception. Therefore, in the case to be decided, there would also be no claim for removal.

Furthermore, the right to erasure under Article 17 of the GDPR does not apply to personnel files kept in paper form. Article 17 (3) of the GDPR provides for a general reservation in favor of statutory retention periods. In the employment relationship, these can be of a social security and tax law nature. In the literature, there are opinions that assume that the employer has a general obligation to delete data as soon as the employment relationship ends and provided that no retention periods apply. As a consequence, however, this would mean that the employer would have to check and sort the data record of an employee who has left the company to determine whether and to what extent there are retention obligations. In the case law of the courts, a data protection claim for the removal of a warning has so far only been assumed in isolated cases. A clarifying decision by the Federal Labor Court has not yet been issued. In the decision discussed here, the Saxony Regional Labor Court assumes that the new data protection regulations based on the GDPR do not require a fundamental change in legal protection, at least for files kept in paper form. Article 17 (1) of the GDPR is not applicable to pure paper personal files.


3. conclusion 

Even if the reasons for the decision read convincingly. The statements on Art. 17 DS-GVO are controversial (cf. on the right to erasure e.g. LAG Sachsen-Anhalt, Urt. v. 23.11.2018, Ref: 5 Sa 7/17) and it is currently not clear whether and to what extent a data protection law claim for deletion exists in these cases. It is possible that the Federal Labor Court will soon provide clarity here.  

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