Sharing Out­look calen­dars? Only with the Staff Council’s approval!

In a judgment which was just issued, the Admi­nis­tra­ti­ve Court of Sig­ma­rin­gen exami­ned the ques­ti­on as to whe­ther employees may be reques­ted to share their Out­look work calen­dar with other employees (e.g. super­vi­sors).
 
The case adju­di­ca­ted by the Admi­nis­tra­ti­ve Court began in a uni­ver­si­ty hotel when a super­vi­sor asked an employee to share his Out­look work calen­dar. Unless the calen­dar was shared by the employee, the super­vi­sor could only see that appoint­ments had been “boo­ked,” but could not see the con­tent of tho­se appoint­ments. The Staff Coun­cil (i.e. the repre­sen­ta­ti­ve body for hos­pi­tal employees, the public-sector equi­va­lent of the Works Coun­cil in the pri­va­te sec­tor) ulti­mate­ly inter­ven­ed in this pro­cess and expres­sed the view that this request for access is sub­ject to co-determination in terms of § 75(4) of the Employee Repre­sen­ta­ti­on Act of the Sta­te of Baden-Württemberg. As grounds for its posi­ti­on, the Staff Coun­cil poin­ted out that it has the aut­ho­ri­ty to super­vi­se the dis­clo­sure of spe­ci­fic con­tent of employees’ calen­dars. Hos­pi­tal manage­ment, on the other hand, took the view that the calen­dar can only be used to faci­li­ta­te appoint­ments and that the rele­vant soft­ware, Micro­soft Out­look, has long been used without any objec­tions from the Staff Coun­cil, so that hos­pi­tal manage­ment had a legi­ti­ma­te expec­ta­ti­on with respect to co-determination by the Staff Coun­cil.
 
The Admi­nis­tra­ti­ve Court of Sig­ma­rin­gen ruled that co-determination by the Staff Coun­cil is requi­red in this case and found, in line with the case law of the Federal Labor Court, that co-determination is requi­red whenever a mea­su­re can objec­tively be used to moni­tor employees, as is the case here. Inte­res­tin­g­ly, it also found that a clearan­ce cer­ti­fi­ca­te from the company’s data pro­tec­tion offi­cer (which exis­ted in this case) can­not replace appro­val by the Staff Coun­cil, and that the­se two requi­re­ments are cumu­la­ti­ve. In other words, if a com­pa­ny wants an employee to share his or her Out­look calen­dar with other peop­le in the com­pa­ny, it will requi­re both a deter­mi­na­ti­on by the company’s data pro­tec­tion offi­cer (if app­li­ca­ble) that the mea­su­re con­forms to data pro­tec­tion law and co-determination by the Staff Coun­cil (if app­li­ca­ble).
 
In terms of data pro­tec­tion law, the Admi­nis­tra­ti­ve Court of Sig­ma­rin­gen points out that the risk that the employee’s pri­va­cy will be inva­ded “through the tech­ni­cal collec­tion of data regar­ding con­duct and per­for­mance” (by sharing the employee’s Out­look calen­dar and the appoint­ments lis­ted in the calen­dar with other employees) must be balan­ced against the supervisor’s inte­rest in sharing the calen­dar. The ruling does not con­tain a spe­ci­fic descrip­ti­on of the supervisor’s inte­rest. The court notes the pos­si­bi­li­ty that collec­tion of this data (by sharing the Out­look calen­dar) may be per­mis­si­ble even without addi­tio­nal pre­cau­ti­ons.
 
In other words, sharing an employee’s Out­look calen­dar may typi­cal­ly be per­mis­si­ble in accordance with § 26(1) Sen­tence 1 of the Federal Data Pro­tec­tion Act or Arti­cle 6(1) Sen­tence 1(f) of the GDPR, in view of the balan­cing of inte­rests requi­red by the Admi­nis­tra­ti­ve Court. The decisi­ve ques­ti­on in this regard is whe­ther con­duct of the employ­ment rela­ti­ons­hip requi­res sharing of the employee’s Out­look calen­dar or not. But in light of assess­ments by super­vi­so­ry aut­ho­ri­ties on this topic and the princip­le of inte­gri­ty and con­fi­den­tia­li­ty pur­suant to Arti­cle 5(1)(f) of the GDPR, it should be ensu­red that the calen­dar is only shared with employees who (abso­lute­ly) need this infor­ma­ti­on (need-to-know princip­le). Ano­t­her rele­vant fac­tor, of cour­se, is whe­ther employees (are allo­wed to) use the calen­dar for pri­va­te appoint­ments as well. After all, access to such pri­va­te infor­ma­ti­on is likely not necessa­ry for con­duct of the employ­ment rela­ti­ons­hip.
 
This ruling ulti­mate­ly con­forms to a ruling by the District Labor Court of Nur­em­berg for the non-public sec­tor, fin­ding that the Works Coun­cil has a right of co-determination with regard to the sharing of Out­look calen­dars (District Labor Court of Nur­em­berg, Judgment of 21 Febru­a­ry 2017, Case No. 7 Sa 441/16).

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