Court case 8 Ca 135/22 – Court Ruling (Germany, 2022)

A German employer attempted to terminate their DPO’s employment contract without notice. The reason was that the employer claims that the DPO did not perform their duties adequately over a period of several years. The DPO contested the validity of this termination under § 6(4) BDSG, which only allows employers to terminate the employment of their DPOs for "important reasons". A month prior, an auditing company had issued an expert opinion on a lack of data protection measures and associated risks within the company where the DPO is appointed. Implementing such data protection measures would have taken up considerable additional working time of the DPO. However, they did not notify their employer that they could not undertake such tasks. The DPO argued that these tasks were of a structural nature and therefore not their responsibility, but that of the management board. The Labour Court of Heilbronn held the termination of the employment contract is invalid. DPOs enjoy special protection in the context of termination of employment under § 38(2) BDSG and § 6(4) BDSG in conjunction with § 626 BGB in Germany. The special protection of DPOs, which is in addition to that awarded under Article 38(3) GDPR, is permitted under EU law. As aforementioned, the BDSG only allows terminations of DPOs for "important reason". On the other hand, pursuant to § 626 BGB, the employment relationship may be terminated without observing a notice period if, considering all circumstances, there are facts on the basis of which the DPO cannot reasonably be expected to continue the employment relationship even until the expiry of the notice period. However, the court declared the dismissal of the DPO to be invalid, as no reasonable grounds to warrant such a termination were found. The justification of termination was based exclusively on the failure of the DPO to complete their responsibilities as opposed to evidence of a concrete breach of duty, which is not a valid ground for termination