No special protection against dismissal for data protection officers if the number of employees falls below the threshold
Kay Alexander Köhn
In its judgment of 5 December 2019, the Federal Labour Court decided that special protection against dismissal for data protection officers ends when the number of employees falls below the threshold (Federal Labour Court, 5.12.2019 – 2 AZR 223/19).
The decision was based on the following factual circumstances:
In 2010, the employee was appointed as data protection officer. At this time, the employer had between ten and thirteen employees engaged permanently with the automated processing of personal data. In 2017, the defendant employer terminated the employee's contract with due notice. At the time the notice was received, the employer had eight employees engaged with data processing. To substantiate his litigation for wrongful dismissal, the employee invoked the special protection against dismissal associated with his appointment as a data protection officer.
The Frankfurt Labour Court decided in favour of the employee. The District Labour Court of Hesse rejected the employer's appeal. However, the Federal Labour Court has now decided in favour of the employer: The employee may not invoke the special protection against dismissal for data protection officers. It is true that an obligation to appoint a data protection officer existed when the employee was hired in 2010, and the plaintiff was also effectively appointed as data protection officer. But the fact that the number of employees subsequently fell below the legal threshold caused the special protection against dismissal to lapse without requiring the appointment to be revoked. The special protection against dismissal is not connected to the original appointment in the past, but rather to a present obligation of appointment ("If it is required to appoint a data protection officer according to Paragraph 1 (...).").
If the number of individuals engaged with the processing of personal data is reduced, special protection against dismissal would not be justified. If the employer has no obligation to appoint a data protection officer, this special protection against dismissal which safeguards autonomy is no longer required either. At the same time, the Federal Labour Court emphasized that when the number of employees falls below the threshold, a one-year period of ongoing protection against dismissal begins.
Since the District Labour Court had not arrived at sufficient findings by the time the number of employees fell below the threshold and thus when the ongoing protection against dismissal began, the Federal Labour Court repealed the decision of the District Labour Court and referred the case back to that court. The Federal Labour Court also provided the District Labour Court with an additional measure of assessment: The date of falling below the threshold is not determined by the actual number of employees, but rather by the regular number of employees. Short-term fluctuations should not be accounted for in determining this date.
Transferability of deliberations
The judgment of the Federal Labour Court was issued for the old law valid before May 2018; however, the argumentation of the 2nd Senate can also be applied for the new regulations of the BDSG after the GDPR's entry into force due to their partially identical wording.
End of special protection against dismissal
With respect to the obligation of appointing a data protection officer, the only change is the minimum number of employees engaged with data processing that triggers the obligation. While this threshold was previously 10 employees, the new threshold is 20 employees (Section 38 (1) Sentence 1 BDSG). This increase in the threshold, applicable since 26 November 2019, provides a certain relief for smaller companies. At the same time, a number of data protection officers in companies with more then ten but less than twenty employees engaged in data processing suddenly became "voluntary" data protection officers. In these cases, the one-year ongoing protection against dismissal began on 26 November 2019. A number of data protection officers will thus be eligible for termination with due notice again after 25 November 2020.
Particularly in small and mid-sized companies, data protection officers must constantly anticipate the loss of their special protection against dismissal pursuant to Section 38 (2) BDBG in conjunction with Section 6 (4) Sentence 2 BDSG if the number of employees decreases. It should be noted, however, that the former data protection officer is still entitled to the one-year ongoing protection against dismissal pursuant to Section 38 (2) BDBG in conjunction with Section 6 (4) Sentence 3 BDSG.
Therefore it may be appropriate to appoint an external data protection officer.
The Senate explicitly left open the question of whether the relevant employee is still considered a data protection officer entitled to special protection against dismissal if the number of employees rises above the threshold again but the appointment of the data protection officer was not revoked in the meantime. However, it appears that the Federal Labour Court tends to accept this type of "revival".