Two employees were fired at short notice by the same employer. After their dismissal, the employer informed their (former) colleagues. About employee A, it was merely communicated that he will no longer appear at work. In the case of employee B, the same message was spread, but it was added that the dismissal decision came “after three written warnings and an adjustment interview.” The matter was referred to the Data Protection Authority (GBA) by both employees.
Another case for the GBA involved communication of a teacher’s dismissal for cause. The following was communicated about this:
“This following physical aggression toward one of the students […] a thorough investigation revealed that this incident made any further functioning of […] as an employee impossible.”
Moreover, not only the teacher’s (former) colleagues were informed in this way, but also students and even former students.
Statements GBA
Employees A and B
According to the General Data Protection Regulation (AVG), the processing of personal data must always be adequate, relevant and, above all, limited to what is necessary for the purpose pursued.
In the case involving employees A and B, the GBA ruled that the communication of employee A’s resignation “did not go beyond what was strictly necessary for the intended purpose of informing the staff that employee A no longer belongs to the team so that his services can no longer be called upon.” No breach of minimum data processing was withheld.
In the case of employee B, however, the GBA ruled that the principle of minimum data processing had been violated. Stating the warnings and corrective talks was – according to the GBA – beyond the bounds of what is necessary to conduct an appropriate personnel policy. The employer was therefore reprimanded for this.
Teacher
Regarding the teacher’s dismissal for cause, the GBA applied the purpose, necessity and balancing test. A legitimate purpose must be pursued, the processing must be limited to what is necessary for that purpose, and the purpose must be balanced against the interests, fundamental freedoms and fundamental rights of the employee.
In this case, the GBA ruled that the communication made passed the purpose test, as communication regarding a dismissal pursued a legitimate purpose. There was no indication showing malicious intent.
On the other hand, the GBA believed that the mentions of “urgent reason” and “physical aggression” were not necessary in light of the legitimate objective. (Among other things) the colleagues, according to the GBA, have no – current need to know the reason for the dismissal.
Finally, the GBA also ruled that the communication violated the balancing test. Not only was the communication found to be premature, but the employee’s rights and freedoms were disproportionately harmed. Moreover, the employer’s communication did not mention that the employee still had the opportunity to appeal. For these reasons, the employer was also reprimanded by the GBA.
Conclusion: limit communication to what is strictly necessary
The GBA’s rulings show that communication about a dismissal is not entirely self-evident and optional.
It is therefore appropriate as an employer to deliver this message as neutrally as possible, in other words, without mentioning what preceded or what exactly drove the dismissal decision.
Note: there are not only obligations for the employer in connection with communication after a dismissal. An employee also does not have a free pass to communicate negatively after a dismissal (e.g., via social media), among other things, on the basis of the duty of loyalty and possibly also on the basis of the obligation to keep trade secrets and secrets related to personal or confidential matters.
If you would like to know more about dismissal, communications to be made or other social law topics, do not hesitate to contact our experts in employment law.
