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

Dr. Carlo Piltz

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).

[August 2020]