Threshold level for the dismissal of a data protection officer
As defined under German data protection law, businesses that employ above a certain number of staff who are involved with the processing of personal data have to appoint a data protection officer. The case that gave rise to the BAG decision was about the dismissal of a data protection officer in accordance with the old Federal Data Protection Act (threshold level of ten people). The employee took the view that the employer had not taken into account the employee’s protection from dismissal. The employer did not share this view and in his argumentation explained that, at the time of the dismissal, only eight staff members were employed. Accordingly, there was in fact no need to appoint data protection officer.
Please note: The threshold level was raised in May 2018 from ten to 20 people. If the appointed data protection officer is an employee then s/he benefits from protection against dismissal during his/her term in office and once this expires from so-called ongoing protection against dismissal.
Ongoing special protection against dismissal?
According to the BAG ruling from 5.12.2019 (case reference: 2 AZR 223/19), the employee was not able to invoke special protection against dismissal given that only eight people were constantly engaged in the automated processing of personal data. If while working as a data protection officer the number of employees falls below the threshold level this would thus admittedly result in the officer’s special protection against dismissal ceasing to apply without any requirement for the employer to revoke this appointment. However, if the data protection officer function eases to exist because the number of employees falls below the threshold level then the ongoing special protection against dismissal commences. The lower court will now have to consider whether or not such an ongoing special protection against dismissal existed in this case. If it did then the termination of employment would be unenforceable and the court would rule in favour of the employee.