Job Interviews in Germany: No Right to ask Applicants about Preliminary Investigations by Public Prosecution Office

by Orrick - Global Employment Law Group
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The German Federal Labor Court (Bundesarbeitsgericht) recently passed a decision (BAG, November 11, 2012 – 6 AZR 339/11) that dealt with an “evergreen” of German labor law: What questions employers may ask in interviews with job applicants and what questions are not allowed to be asked.

1. The Background

Employers are entitled to ask job applicants questions as long and to the extent they have a “legitimate interest worth of approval and protection” (berechtigtes, billigenswertes und schutzwürdiges Interesse) in the response to such questions. It is required that the interest of the employer to obtain the requested information outweighs the interest of the employee to protect his personal privacy. In general, this is (only) the case if the requested information is relevant for the intended job and the services that the applicant is expected to render for the interviewing company. The employer is required to base its decision regarding a possible job offer solely on objective reasons.

If a specific question in an interview does not comply with these requirements, the job applicant does not only have the right to remain silent and to conceal respective facts, but to actually lie to the employer. Moreover, if an unlawful employer question relates to the areas of race, ethnical extraction, sex, religion, handicaps, age or sexual identity, it may also be deemed an indication for discrimination under the German Anti-Discrimination Law, which could trigger damage claims of the rejected applicant against the employer.

In a series of verdicts, German courts have prohibited employers to ask applicants questions, inter alia, with regard to family planning, sexual identity, religious denomination, the membership in a works council or a political party, a possible pregnancy, and, contingent upon the circumstances of the case, also with respect to age, disability, health status, an alcohol and/or drug addiction and the applicant’s last salary.

2. The Case

Plaintiff had applied for a job as a teacher at a public secondary school in the German federal state of North Rhine-Westphalia (Nordrhein-Westfalen). As part of the application process, he was asked to fill out a form provided by the school in which he had to declare, among other things, whether (i) he had a criminal record, (ii) there were currently criminal proceedings or preliminary investigations by public prosecution pending against him, or whether (iii) any such proceedings had been pending in the last three years. The plaintiff signed the document without providing any of the aforementioned information, hereby suggesting that no such investigations had taken place. Shortly after this, he was employed by defendant, the federal state of North Rhine-Westphalia, based on a one-year fixed-term contract.

Several weeks later, the school as well as the responsible district government received an anonymous letter, in which certain allegations against the plaintiff were made concerning possible acts of child molestation. The district government turned to the Public Prosecution Office, requested further information regarding this matter and received a detailed list of past procedures. The list contained several preliminary investigations that were conducted against the plaintiff in the past. However, none of these had led to a conviction of the plaintiff. In fact, all such procedures were ceased to be pursued by the Prosecution Office, primarily because the plaintiff’s guilt was considered to be of minor nature and there was no public interest in the prosecution, and because the Prosecution Office imposed the obligation on the plaintiff to render certain payments to non-profit-making institutions to eliminate the public interest in further criminal prosecution.

Upon receipt of this information, the defending state of North Rhine-Westphalia contested the validity of the concluded employment agreement in its entirety and terminated the agreement with immediate effect. Defendant argued that the intentional concealment of conducted preliminary investigations against plaintiff had destroyed the necessary basis of mutual trust between the parties.

The plaintiff disputed the validity of his dismissal and took legal action against these acts.

3. The Verdict

The first-instance court considered the termination without notice to be lawful. The Court of Appeals reversed this decision stating that the termination was invalid. Defendant’s appeal against this decision remained without success.

By applying German data protection law and by drawing a comparison to Sec. 53 para 1 of the German Law of Central Registry (Bundeszentralregistergesetz), the Federal Labor Court in Germany ruled that companies do not have any legitimate interest to know about preliminary investigations that were conducted by the Public Prosecution Office. If at all, employers might have such interest with regard to ongoing investigations, provided such procedure gives reasons to doubts as to the personal aptitude of a candidate regarding the required contractual services. Furthermore, the Court decided that employers have a right to ask questions in relation to a criminal conviction.

However, “unspecified questions” about closed investigations (that did not lead to a criminal case or even a criminal conviction) do not justify such legitimate employer interest, irrespective of the circumstances of the case, according to the Federal Labor Court in Germany. The rule-of-law principle includes a presumption of innocence (Unschuldsvermutung) which is valid until a person is actually convicted. Pursuant to the German Federal Labor Court, this principle shall apply to employees as well, even if the suspicion that a crime has in fact been committed by the accused is not or cannot be eliminated.

The Court mentioned that defendant was not prevented from conducting further investigations based on the new facts gained from the Public Prosecution Office which could lead to further insights regarding a possible lack of suitability for the engagement as a teacher. However, defendant solely based its termination of the employment on the loss of trust caused by the false information given in connection with the preliminary investigation against plaintiff. Pursuant to the Court, this could not justify the termination of the employment.

4. Conclusion

The new decision of the German Federal Labor Court is another example for the growing sensibility among the German labor courts regarding the collection and use of personal data of employees, during the employment, but also prior to an employment. Respective limitations are not only prescribed by the courts with regard to the collection of personal data during interviews. They are, for instance, also discussed with regard to the collection of personal data in publicly available Social Media platforms, such as Facebook and LinkedIn.

By its recent decision, the Federal Labor Court limits once more the general right of the companies to obtain information about job applicants that does not directly relate to the professional qualifications and experience of the candidates. Bearing this in mind, companies are requested to carefully consider what information is in fact needed for the concrete position prior to entering into interviews with their candidates. Questions that relate to past attachment of wages, for instance, are not relevant for most positions while in fact they might be relevant for particularly trustworthy positions in which the candidate is responsible for financial matters. As another example, companies may not ask for general handicaps or the general health status of an employee, but they are allowed to ask whether the employee is prevented from carrying out specific tasks that are part of the requested contractual duties due to physical or mental deficits. Questions about closed preliminary investigations should be completely avoided in the future.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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