A works agreement which affects the personality rights of employees must be proportionate. This is the case where a works agreement provides for bag checks (including checks of coat and jacket pockets) at the factory gates to prevent the theft of small items of production, and where, in the year prior to the entry into force of the works agreement, loss from stolen items amounted to approximately EUR 250,000.00 in relation to 86 employees selected by a random number generator who were checked on 30 days of the year.
In 2009, a joint venture comprised of several employers (hereinafter referred to as the "employer") entered into a works agreement with the works council regarding the conduct of gate checks. This works agreement included, inter alia, a provision which, having regard to § 32 of the Federal Data Protection Act (Bundesdatenschutzgesetz - BDSG), allowed the conduct of gate checks. The gate checks included checks of containers carried by employees as well as of their clothing and, in particular, coat and jacket pockets. A random generator was used to select the employees who would be checked. According to information from the works council, additional checks could be ordered if an employee was suspected of theft. The results of the checks were stored electronically.
Between October 2009 and September 2010, goods worth a total of EUR 250,000.00 were pilfered from the employer. On the basis of the works agreement mentioned, gate checks were carried out on a total of 86 people on 30 days during one year. In several cases, stolen goods were discovered, which led to the filing of criminal complaints.
Subsequently, the works council (due to changes in its composition) terminated the works agreement for cause.
The Federal Labour Court held that the described works agreement could not be terminated for cause because it was in compliance with the provisions of § 75(2) sentence 1 of the Works Constitution Act (Betriebsverfassungsgesetz - BetrVG). At the time in question, the works agreement could not be duly terminated because of the notice period that had been agreed.
To start with, the Federal Labour Court upheld its prior case law in which it had ruled that the parties to a works agreement must respect the general right of personality derived from Article 2(1) in conjunction with Article 1(1) of the Basic Law (Grundgesetz - GG) when concluding a works agreement. The Federal Labour Court deduced from this that any works agreement that encroaches on the general right of personality must be especially pro-portionate. This requires that a provision be suitable, necessary and reasonable in view of the employee's rights and the desired objective. In particular, the parties to the works agreement should not have another means available to them of achieving the desired objective which is just as effective but less restrictive in relation to the employee's right of personality. A works agreement is proportionate in the strict sense if on balance the severity of the encroachment is not disproportionate to the reasons justifying such encroachment. After carefully and closely weighing the severity of the encroachment against the reasons for it, the Federal Labour Court then arrived at the conclusion that the provisions on the clothing and bag checks were proportionate.
Since the works agreement also prescribed that the results of the checks should be recorded, the Federal Labour Court considered in addition whether the works agreement was compatible with § 32 of the Federal Data Protection Act. If § 32 of the Federal Data Protection Act had been the only standard of review, the Federal Labour Court would have had to resolve a good number of controversial questions (for example, the permissibility of preventative or repressive measures). However the Federal Labour Court held that the works agreement was a legal provision within the meaning of § 4(1) of the Data Protection Act. As a proportionate provision on the protection of personality rights, this therefore took precedence over a review of § 32 of the Data Protection Act.
In this decision, the Federal Labour Court once again reaffirmed its view that a works agreement is a legal provision within the meaning of § 4(1) of the Federal Data Protection Act. This means that the data processing provided for in the works agreement does not require either the consent of the employee or recourse to the statutory provisions in the Federal Data Protection Act, or in particular to § 32 of the Data Protection Act. This is particularly important because this is a topic which is frequently the subject of disagreement among legal commentators (cf. Gola/Schomerus, BDSG, 11th ed. 2012, § 4 para. 10 with further references). The draft of a data protection law for employees even provided that it was not permissible for a works agreement to deviate from the data protection requirements which apply to employees. Given that efforts to regulate unanswered questions regarding the data protection of employees are not likely to be "resumed" at the current time, it would seem that works agreements are one way that the parties to works agreement can autonomously regulate data protection.
In view of the decision of the Federal Labour Court presented here as well as another one of its recent decisions (Federal Labour Court, 2 AZR 546/12 of 20 June 2013), it should be noted that particularly high standards must be applied to the application of the proportionality principle in the case of works agreements affecting data protection. As is shown by the detailed examinations undertaken in both cases by the Federal Labour Court, it is not just necessary to weigh different encroachment measures against each other in terms of their severity. Instead it can be assumed that individual provisions achieve a balance between the reason for encroachment on data protection and the degree of its severity. A disproportionate works agreement cannot form the basis for an encroachment by an employer on the personality rights and data protection rights of an employee. As a result, any evidence gathered in such manner cannot be used in court. In light of this new and very strict case law handed down by the Federal Labour Court on the proportionality of works agreements, it will no longer be possible to simply rely on the validity of existing works agreements.