Employee – Court Ruling (Germany, 2022)

Plaintiff A is a former employee of defendant C. Defendant C accuses plaintiff A of a series of misconducts in connection with their employment, namely: (1) to have made false statements when concluding their emplyoment contract, (2) to have breached data protection regulations by having her husband draw up the duty roster and, thereby, providing an unauthorized person access to the personal data of other employees, (3) to have instructed other employees to provide care services to clients beyond the allowed limited field of acivity of said employees, (4) to have repeatedly postponed appointments with new clients without reason, and (5) to have stopped working for several afternoons without permission to pursue private activites. Plaintiff A disputes these assertions and claims that after the termination of the employment relationship between plaintiff A and defendant C, defendant C made an active effort to contact potential future employees of plaintiff A to inform them of the disputed misconducts and is filing for injunctive relief. The court ordered the defendant to cease and desist from actively approaching potential future employers of the plaintiff to make their claims. It pointed out that both the protection of personality guaranteed by Article 1 and 2 of the German basic law as well as the legal basis for the processing of personal data of Article 6(1)(f) GDPR (the legitimate interests of a data controller or a third party) require a balancing of interests between (1) the rights of a former employer to provide information to a new employer about the performance and conduct of a former employee and (2) the personality and data protection rights of an employee. It held that while in principle employers are entitled to forward information regarding the employee's performance and conduct, none of the claims, to the extent that they were substantiated by defendant C, met the necessary proportionality threshold of the German basic law and the GDPR to entitle defendant C to actively contact potential future employers of plaintiff A.