The personnel dossiers contain documents relating to the employment relationship of the employees. Be it the application documents or a warning – the information stored is usually personal data. According to the provisions of the Federal Data Protection Act, employees have the right to receive information from the employer about existing personal data. Accordingly, employees must generally be granted access to their personnel files upon request.
Information must be complete
When providing information, the employer must ensure that the personnel dossier handed over is complete, otherwise criminal sanctions may be imposed. The request for information must be complied with within 30 days. But does this right to access apply without restrictions? Are there exceptions? The Federal Court has stated that the right to information under the Data Protection Act must not lead to the opposing party being investigated for evidence. Accordingly, it should not be possible for a party in a civil case to obtain evidence for the conduct of the case through the request for information, which it would otherwise not be able to obtain. The Data Protection Act therefore does not apply in civil proceedings.
Unclear legal situation
What is disputed is whether the right to the disclosure of the personnel dossier exists in the pre-litigation stage, for example if the employee is dismissed and claims unfair dismissal. In the relevant constellation, a civil lawsuit is looming, but no trial is yet pending. It is therefore questionable whether the employer's request for the personnel dossier already constitutes obtaining evidence (in procedural law) or whether the employee is simply asserting his right to information, which is protected by data law. Depending on the circumstances, the employer will have to think about whether she wants to comply with the request for information or not. If the person wrongly withholds the personnel file, the person concerned can enforce their right to information in court. A well-considered decision, taking into account all relevant considerations, is therefore recommended. If in doubt, legal advice should be sought.
This article was published on October 21, 2022 in the “Standpunkt der Wirtschaft” of the Baselland Chamber of Commerce.