Revoking the appointment as data protection officer
(Labor Court Munich, decision dated May 12, 2015 – 23 Ga 52/15)
The employer had appointed a data protection officer without time limit. One of his tasks was to investigate the computer and workstations of the employees outside the regular working hours. The works council rejected his required approval regarding overtime hours due to staff reduction. The employer revoked the appointment as data protection officer and outsourced the respective tasks and responsibilities. The employer justified the revocation that the data protection officer is unable to fulfil his tasks, since controlling the workstations outside the regular working hours was not allowed anymore.
The Labor Court decided that the employer is obliged not to interfere in any way when the data pro-tection officer should perform his tasks. He has a legal claim to perform the respective tasks with-out any obstacles. This claim cannot be eliminated by revoking his appointment. The revocation changes the essential conditions of the employment relationship one-sided. The law stipulates spe-cial protection against revoking the appointment as data protection officer. Therefore, the employ-ment as data protection officer has to be impossible and endangered for good cause. It is not suffi-cient that the works council merely rejects its approval for overtime hours. This is because investi-gating the employees’ workstations is only part of the tasks as data protection officer. Since the activity as data protection officer is free from any instructions, the employer can neither instruct nor prohibit that the data protection officer should perform outside regular working hours. Therefore, the rejected approval by the works council is not legally binding for him and does not constitute grounds to revoke his appointment.
Furthermore, revoking the appointment as data protection officer qualifies as transfer requiring works council consent. Because the removal as data protection officer means losing a distinctive position within the business operations and thus, is a significant change of work tasks.
This decision emphasizes the special role of the data protection officer. This role will become even more important with the General Data Protection Regulation applying on a Pan-European level. Since it is almost impossible to revoke the appointment as data protection officer, the appointment should only be for a fixed term. A permanent appointment grants special protection against dismis-sal that is very hard to eliminate.
Attorney and certified
specialist for labor law
Dr. Klaus Neumann