Unlawful publication of personal data by employees can be an important reason for dismissal.

In its judgement of 04.08.2021 – 25 Ca 1048/19, the ArbG Stuttgart dealt, among other things, with the question of whether unlawful data processing by the employee in the employment relationship can constitute an important reason for dismissal. The court found, inter alia, that the contents of litigation files are not public according to the statutory provisions. If an employee deliberately and intentionally and without justifiable reason publishes in the company public such pleadings in which personal data, in particular also special categories of personal data, are processed, then he thereby unlawfully and culpably violates the personal rights of the persons named in these pleadings.

The plaintiff was again dismissed without notice by his employer, the defendant, for serious breach of duty. In the course of the unfair dismissal proceedings, the plaintiff arbitrarily made the case files of the labour court proceedings public within the company. They contained detailed information on the facts of the case with the full names of witnesses and employees of the employer, including information on the psychological impairments of the parties involved. The plaintiff justified the publication of the case files by stating that he had acted exclusively in the context of “personal or family activities”, that there was no norm “which in principle requires that case files be kept secret” and that the data had been “public due to the public examination of witnesses in the public session before the labour court in front of 50 to 80 persons as representatives of the public”. (para. 60ff) The defendant employer, on the other hand, was of the opinion that the plaintiff had violated data protection law and the right of personality of the persons concerned by publishing the case file.

Among other things, the court had to decide whether the unlawful publication of the employee’s case files in the employment relationship constituted an important reason for termination, which could justify an extraordinary termination without notice without prior warning.

The court first held in general that violations of the provisions of the GDPR can constitute an important reason for dismissal. Illegal data processing by the employee in the employment relationship, which is accompanied by violations of the general right of personality of, for example, work colleagues, may be suitable to constitute an important reason for dismissal “in itself” if the violation is of corresponding severity. Culpable breaches of data protection are to be assessed in the same way as culpable breaches of the duty of confidentiality. (para. 127)

According to the court, in the case at hand, the published case files contained personal data, according to which the GDPR was therefore applicable. When publishing them, the plaintiff could not rely on the exception of use for purely personal and family activities under Art. 2(2)(c) GDPR. (para. 130ff) Dissemination in unredacted form had not been necessary (para. 137ff) and the confidentiality interests of the data subjects mentioned in the files would have had to prevail over publication. (margin note 143) Furthermore, the plaintiff could not rely on prior publication in court. Court publicity is not to be equated with the concept of company publicity, and the written content of court files was also not public in court. In conclusion, the plaintiff, as the person responsible for data protection, had unlawfully disseminated the case files in the public domain and thus violated data protection provisions. The court considered this to be a culpable violation of the duties under the employment contract and an important reason for termination without notice according to section 626 (1) of the German Civil Code.