On 12 July 2016 (docket number 9 AZR 791/14) the Federal Labour Court (Bundesarbeitsgericht, BAG) decided that an employee generally has no right to have a lawyer present when consulting his personnel file (Personalakte).
In the case at hand, the plaintiff received an informal warning (Ermahnung). To prepare possible legal action against it, the plaintiff’s legal representative requested access to the personnel file where the warning and other relevant information regarding the employment relationship were documented by the employer. The defendant’s response was that only the employee himself and – at his request – a member of the works council are allowed to consult the personnel file. The plaintiff could however make copies and hand them to his legal representative afterwards.
The Federal Labour Court agreed with the defendant’s view and ruled that an employer does not have to grant legal representatives access to personnel files of employees. The main reason behind the decision is that – in the court’s view – the employee’s right of access aims to provide transparency regarding the information gathered about him and this can be achieved without legal advice. According to the court, legal advice is only necessary at the next stage when the employee decides to take legal action against the employer. Thus, it is sufficient if the employee is allowed to make copies to pass on the relevant content of the personnel file to the legal representative.
This decision strengthens the employer’s authority to decide who enters his premises. If the court had decided otherwise, the employee’s legal representative could have claimed access to accompany his client. This was avoided by the court’s finding that copies of the personnel file are sufficient for legal advice.