The personnel files contain the documents related to the employment relationship of the employees. Whether it's the application documents or a warning – the information stored is typically personal data. According to the provisions of the Federal Data Protection Act, employees are entitled to receive information from the employer about the existing data related to their own person. Accordingly, employees are generally granted access to their personnel file upon request.
Information must be complete
The employer must ensure when providing information that the personnel file handed over is complete; otherwise, criminal sanctions may be imposed. The information request must be complied with within 30 days. However, is this right of inspection unrestricted? Are there exceptions? The Federal Supreme Court has ruled that the right to information under the Data Protection Act must not result in the opposing party conducting evidence research. Accordingly, a party in civil proceedings should not be able to obtain evidence for the conduct of the proceedings through the information request that it would otherwise not be able to obtain. The Data Protection Act therefore does not apply in civil proceedings.
Unclarified legal situation
It is disputed whether the claim to the disclosure of the personnel file exists in the pre-trial stage, for example, when the employee is dismissed and asserts wrongful termination. In the corresponding constellation, civil proceedings are imminent, but no proceedings have yet been instituted. It is therefore questionable whether the employer's demand for the personnel file already constitutes (procedural) evidence gathering or whether the employee is merely asserting his data-protected right to information. The employer will have to consider whether or not to comply with the request for information, depending on the circumstances. If she unjustifiably withholds the personnel file, the person concerned can enforce the claim to information in court. A well-considered decision, weighing all relevant considerations, is therefore recommended. In case of doubt, legal advice should be sought.
This article appeared on October 21, 2022, in the «Standpunkt der Wirtschaft» of the Basel-Landschaft Chamber of Commerce.
