In its judgment of March 31.03.2023, 4 (Az: 117 Sa 23/XNUMX), the Saxony State Labor Court decided that there is no legal interest in removing a warning from the personnel file after the termination of an employment relationship.
1. FACTS
The parties are in dispute over the removal of two warnings from the personnel file. However, the plaintiff employee's employment relationship was terminated before the lawsuit was filed. During the employment relationship that ended, the employee received two warnings because she had breached her employment contractual obligations. She wanted to have this warning removed by filing a complaint with the labor court.
The labor court had dismissed the lawsuit. The plaintiff employee lacks the need for legal protection because the employment relationship has now been terminated.
2. DECISION
The Saxony State Labor Court confirmed the labor court's decision. It is recognized that the employer's duty of care can give rise to rights and obligations even after the employment relationship has ended. However, after the employment relationship has ended, weighing up the interests of both sides usually means that the employee is no longer entitled to have a wrongly issued warning removed. This only does not apply if the employee can explain and, if necessary, prove that the warning could harm him even after the employment relationship has ended.
The plaintiff employee did not allege the existence of such an exception. Therefore, in the case to be decided, there would be no right to removal.
Furthermore, the right to deletion is no longer valid Art. 17 GDPR not applicable to personnel files kept in paper form. Art. 17 Para. 3 GDPR regulates a general reservation in favor of statutory retention periods. In the employment relationship, these can be of a social security and tax nature. There are opinions in the literature that assume that the employer has a general obligation to delete data as soon as the employment relationship has ended and provided that no retention periods apply. However, this would result in the employer having to check and sort the data record of a departed employee to determine whether and to what extent there are retention obligations. In case law, only a few cases have so far accepted a right to have a warning removed under data protection law. A clarifying decision from the Federal Labor Court has not yet been made. In the decision discussed here, the Saxony State 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. Art. 17 Para. 1 GDPR is not applicable to purely paper personnel files.
3. CONCLUSION
Even if the reasons for the decision read convincingly. The statements on Art. 17 GDPR are controversial (see, for example, LAG Saxony-Anhalt, judgment of November 23.11.2018, 5, Ref: 7 Sa 17/XNUMX) on the right to deletion and it is currently not clear whether and to what extent there is a right to deletion under data protection law in these cases. The Federal Labor Court may soon provide clarity here.
