German Regional Labor Court of Hamm (LAG Hamm), judgment of 6 October 2022, 18 Sa 271/22

1. Overview

Within a group of undertakings, a company carried out payroll accounting and personnel administration for around 80 employees and had designated a data protection officer. After that officer had been removed from office and his employment had been terminated, it had to be clarified whether the company was subject to any obligation to designate an officer at all and whether the officer benefited from the special protection against dismissal.

Reference: LAG Hamm, judgment of 6 October 2022, 18 Sa 271/22

2. Personnel administration is not a core activity

Under Recital 97 GDPR, the processing of employee data is as a rule not a main purpose but merely a support process. The mere fact that HR data are processed does not in itself give rise to an obligation to designate an officer. Nor are the sensitive data arising in the course of payroll accounting, such as data on religious affiliation or on periods of incapacity for work, processed on a scale that reaches the threshold of Article 37(1)(b) or (c) GDPR. Payroll accounting and personnel administration for around 80 employees therefore do not constitute a core activity that requires designation.

3. No special protection against dismissal in the case of a voluntary designation

As the company was not obliged to designate a data protection officer, the designation rested on a voluntary decision. A voluntarily designated data protection officer does not enjoy the special protection against dismissal under § 38(2) in conjunction with § 6(4) BDSG, which allows termination only for good cause. That stricter protection applies only where a statutory obligation to designate an officer exists.

4. Significance for practice

The decision gives concrete shape to the concept of a core activity in the context of the designation and at the same time shows the consequence for protection against dismissal: anyone designating an officer voluntarily, without being obliged to do so, should be aware that the German special protection against dismissal, which goes beyond EU law, does not then apply (for more detail, see the prohibition on penalization and dismissal).