Digital trade union campaigning: No entitlement to email addresses or internal platform access 

In its judgment of 28 January 2025 (1 AZR 33/24), the German Federal Labour Court (Bundesarbeitsgericht, BAG) decided on the question of whether the tariff-responsible trade union can request the individual employer to use the company's digital communication tools (such as company email addresses, internal platforms or intranet links) for campaigning and information purposes – with negative answer.

Facts

• The plaintiff is the trade union responsible for collective bargaining for the defendant – the parent company of an internationally active group of companies. The trade union wanted to adapt its membership recruitment and information work to the changed working conditions and communication habits and to rely more heavily on digital channels.
• In a large enterprise belonging to the defendant with approximately 5,400 employees, the plaintiff demanded digital access rights to company communication tools, as many employees work remotely and are not regularly on site to distribute campaigning and information digitally.
• Specifically, the plaintiff demanded:
  

o Disclosure of all work email addresses of employees working at the company

o Establishment of an automated email distribution list

o Access to the group-wide communication platform ‘Viva Engage’ (formerly Yammer) as an ‘internal user’

o Permanent link to her website on the intranet homepage

• The defendant rejected the union's demands, citing data protection, disruption to business operations and interference with its entrepreneurial freedom, among other things.
  

Reasons for the decision

• No legal basis: Neither Art. 9 (3) of the German Constitution (Grundgesetz, GG, freedom of association) nor ordinary statutory provisions (Section 2(2) of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), Section 78 s. 2 BetrVG) justify a claim to the requested digital access to the employer. An analogous application of the intranet linking obligation provided for in the Federal Personnel Representation Act (Section 9 (3) sentence 2 of the German Federal Personnel Act (Bundespersonalgesetz, BPersVG) is not applicable in works constitution law.
• Freedom of association protects digital campaigning – but not by all means: Freedom of association also includes the right of a trade union to recruit members and inform employees – including via digital communication channels. However, this right is not unlimited: it must be balanced against the employer's fundamental rights, such as property rights (Art. 14 GG) and freedom of enterprise (Art. 12 (1), 2 (1) GG).
• The release of all work email addresses would cause a considerable amount of ongoing organisational effort, as the lists would have to be continuously updated. In addition, it would disclose the personal data of all employees and interfere with their data protection interests. Employees should not be added to a mailing list without their consent; rather, they can voluntarily provide their addresses. Protection against unsolicited electronic campaigning therefore outweighs the trade union's campaigning interests.
• Access to ‘Viva Engage’ as an ‘internal user’ would give the trade union far-reaching insights into internal company and employee data – including posts, files, profiles, group memberships and communication histories. This deep insight goes far beyond what is necessary for campaigning purposes and is therefore disproportionate.
• A permanent link on the intranet homepage would give the trade union a permanent digital presence on the company's website. However, the company's freedom of design includes the decision as to which content is prominently displayed there. Furthermore, as there is already a link via the general works council's page, there is no need for this.
  

Consequences for practice

The BAG's decision makes it clear that there is no general digital access right for trade unions. Employers are not obliged to disclose work email addresses, grant access to internal platforms or set up permanent intranet links.

For trade union activities, this means that traditional means of access – in particular physical access to the workplace – continue to be considered sufficient. Trade unions must base digital contacts on data voluntarily provided by employees or use their own channels outside the employer's infrastructure.

Employers can protect their digital communication systems from external use through clear internal regulations or works agreements without violating freedom of association. At the same time, voluntary solutions – such as temporary intranet notices or agreed digital formats – can be considered in individual cases to promote constructive dialogue.

Global reference to framework collective bargaining agreement (Manteltarifvertrag, MTV) covers limitation periods – restructuring collective bargaining agreements without separate agreement are invalid 

In its judgment of 29 January 2025 (4 AZR 83/24), the BAG ruled that a general reference in an employment contract to the entire relevant MTV also effectively covers the limitation periods contained therein and is therefore subject to the control privilege of Section 310 (4) sentence 3 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Special collective bargaining agreements (CBA) – such as restructuring CBA – do not apply to employees not covered by CBA without a separate contractual agreement.

Facts

• The plaintiff worked from April 2008 to December 2022 as a training manager for the defendant employer, which in turn was subject to the CBAs for the metal and electrical industry in Hesse. He was classified as a non-tariff employee (AT employee) and received a gross monthly salary of EUR 4,550.
• In addition to specifying the remuneration, the employment contract contained individual further provisions, including on the notice period, and also a clause stating that ‘all other contractual components, such as holiday entitlement, holiday pay, special payments, etc., are governed by the collective bargaining provisions of the framework collective agreement for the metal industry in Hesse’ (MTV). Section 29 MTV provides for a three-month limitation period for all mutual claims arising from the employment relationship.
• Between 2019 and 2021, the defendant concluded several company-related restructuring CBAs with IG Metall, which provided for temporary deferrals of remuneration claims initially amounting to 10%, later 5% and finally 2.5%. As an AT employee, the plaintiff refused to sign an amendment agreement presented by the defendant. Nevertheless, the defendant reduced the remuneration in accordance with the restructuring CBAs by a total of EUR 7,459.70 gross.
• After terminating his employment relationship in September 2022, the plaintiff claimed the aforementioned amount of further remuneration. He took the view that the limitation period stipulated in Section 29 MTV had not been effectively incorporated into the employment contract. The defendant, on the other hand, invoked the expiry of the claims with reference to Section 29 MTV.
• The Labour Court Offenbach upheld the claim, but the Regional Labour Court Hesse dismissed the claim on appeal by the defendant. The plaintiff pursued his claim for payment with an appeal.
  

Reasons for the decision

• The BAG first confirmed that the restructuring CBAs were not applicable to the employment relationship with the plaintiff. The reference clause covered only the MTV, but not other collective agreements. Nor was there any subsequent contractual inclusion of these restructuring collective agreements, for example through implied consent.
• According to its legal assessment, the BAG was unable to conclusively decide whether the limitation period under Section 29 MTV also covered the salary difference claims at issue: In the BAG's opinion, the reference clause in the employment contract, ‘all other components of the contract ... are governed by the collective bargaining provisions of the framework collective agreement’, initially included a dynamic global reference to the entire MTV in its currently valid version. The exemplary list (‘such as ... etc.’) does not constitute a restriction. An interpretation in accordance with Section 305c (2) BGB is ruled out, as there are no significant doubts as to the scope of the clause. The clause is neither surprising nor opaque.
• The contractual limitation period in Section 29(1)(b) MTV covers ‘all mutual claims arising from the employment relationship’, including claims for remuneration, with the exception of bonuses and overtime pay (Section 1(a)). Insofar as the limitation period also applies to the statutory minimum wage or intentional liability, it is invalid in this respect (Section 3 of the German Minimum Wage Act (Mindestlohngesetz, MiLoG), Section 202 (1) BGB), but remains valid in all other respects.
• The BAG cannot therefore make a final decision on the legal dispute, as the LAG has not fully determined whether the MTV is applicable to the employment relationship in its entirety. (Only) in the case of full application of the MTV to the employment relationship is AGB content control excluded (Section 310 (4) BGB). The decisive factor here is whether the provisions agreed in the employment contract in addition to the collective agreement referred to (e.g. overtime flat rate, notice periods) are only of a declaratory nature or contain provisions that deviate from the collective agreement in terms of content.
  

Consequences for practice

Employers should ensure that reference clauses in employment contracts refer clearly and unambiguously to the entire relevant collective agreement in order to make use of the control privilege of Section 310 (4) sentence 3 BGB. An exemplary list of individual areas of regulation (‘such as ... etc.’) is permissible, but must not restrict the global nature of the reference; it is not necessary to include the entire collective agreement for an industry. Special or in-house collective agreements – such as restructuring collective agreements – only apply to employees not covered by collective agreements if they are expressly agreed upon by mutual consent; mere silence or acceptance of reductions is not sufficient. CBA exclusion periods only apply if the relevant collective agreement applies in its entirety and the category of claims is covered. Although they are invalid insofar as they relate to the statutory minimum wage (Section 3 MiLoG) or liability for intent (Section 202 (1) BGB), they remain valid in all other respects.

Mere delay in providing information is not sufficient for GDPR damages 

In its judgment of 20 February 2025 (8 AZR 61/24), the BAG ruled that a mere delay in fulfilling a right to information under Art. 15 GDPR does not in itself justify a claim for non-material damages under Art. 82 (1) GDPR. The decisive factor is whether the data subject can demonstrate and prove specific, objectively comprehensible damage, for example in the form of a justified loss of control over their personal data. Abstract fears or mere negative feelings such as concern, anxiety or annoyance are not sufficient for this.

Facts

• In December 2016, the plaintiff was employed for one month by the defendant's legal predecessor and had already received all the relevant information in 2020 in response to an initial request for information pursuant to Art. 15 GDPR.
• On 1 October 2022, the plaintiff again requested information due to suspected ongoing data processing and set a deadline of 16 October 2022; after receiving no response, he sent a reminder on 21 October 2022 with a deadline of 31 October.
• The defendant replied on 27 October 2022 with what it considered to be sufficient information, which the plaintiff objected to on the grounds that it lacked details on the storage period, the recipients and the completeness of the data copy. After further correspondence, the defendant provided additional information on 1 December 2022.
• In a letter dated 30 October 2022, the plaintiff demanded at least EUR 2,000 in non-material damages for an alleged loss of control over his data and for worry, anxiety and frustration.
• The Labour Court Duisburg awarded the plaintiff damages of EUR 10,000, while the Regional Labour Court Düsseldorf dismissed the claim in its entirety. In his appeal, the plaintiff sought to have the labour court's ruling reinstated.
  

Reasons for the decision

• No decision on the question of infringement: The BAG initially left open the question of whether the delayed or incomplete provision of information constituted an infringement within the meaning of Art. 82(1) GDPR. The rejection of the claim was based solely on the absence of proven damage.
• Requirement of specific damage: For a claim under Art. 82(1) GDPR, a violation, damage and causality must be present cumulatively. The damage must be demonstrated and proven independently; blanket assertions are not sufficient.
• Loss of control only in the case of objectively justified fears: A loss of control over personal data may constitute non-material damage, but this requires an objectively comprehensible and justified fear of data misuse. A mere delay in providing information without further evidence is not sufficient for this.
• Negative feelings alone are not sufficient: Emotions such as anger, frustration or abstract concerns do not constitute compensable non-material damage without a concrete factual basis. A substantiated submission from which a justified fear can be derived is necessary.
• No punitive or deterrent function: Art. 82 GDPR serves solely to compensate for damage actually incurred and does not pursue any punitive or deterrent purpose. Mere difficulties in enforcing the law therefore do not justify a claim for compensation. The BAG did not rule on the defendant's incidental application for compensation for enforcement damages itself, but referred the matter back to the LAG.
  

Consequences for practice

Employers should continue to take GDPR requests for information seriously and respond to them in a timely manner. For employers, however, the BAG's decision also shows that a delayed or initially incomplete response to a request for information under Art. 15 GDPR does not, as a rule, lead to a claim for non-material damages under Art. 82 GDPR, provided that the data subject cannot prove any specific, objectively justified damage. This reduces the financial risk in the case of purely formal violations, but does not release employers from their obligation to respond to requests for information in a timely and complete manner. In order to be on the safe side in the event of a dispute, it is advisable to keep complete documentation of the processing, including deadlines, content and communication history. However, employers should be aware that in the case of actual risks such as data loss or misuse, compensable damage can quickly be affirmed. Delayed disclosure may also continue to result in regulatory measures and undermine the trust of those affected.

(No) immediate or rapid expiry of vested virtual options upon termination of employment due to resignation 

On 19 March 2025, the BAG ruled that clauses in general terms and conditions (Allgemeine Geschäftsbedingungen, AGB) which (1) cause the employee's vested virtual option rights to expire immediately upon termination of the employment relationship due to resignation, or (2) cause the virtual option rights to expire twice as quickly as they were created, may in each case unreasonably disadvantage the employee.

Facts

• The plaintiff employee was employed by the defendant from 1 April 2018 to 31 August 2020.
• In an ‘allowance letter’ dated 24 August 2019, the defendant granted the plaintiff 23 virtual option rights in accordance with the provisions of an employee share ownership plan (ESOP). Among other things, the ESOP provided for:
  

o A vesting period of four years, whereby periods of unpaid leave were not to be taken into account for the vesting period

o Immediate forfeiture of all options already vested in the event of voluntary resignation (Section 4.2 ESOP)

o Proportional forfeiture of all options within two years of termination of employment (12.5% per quarter, beginning three months after departure, Section 4.5 ESOP)

• Upon termination of his employment on 31 August 2020, 31.25% (7.1875 options) were vested. Following a subsequent 1:20 share split, this corresponded to 143.75 options.
• In June 2022, the plaintiff requested a declaration that these options would continue to exist even after the termination of his employment relationship. The defendant rejected this, citing the expiry clauses and the voluntary incentive nature of the ESOP. The Labour Court Munich and the Regional Labour Court Munich dismissed the action. The BAG upheld the action.
  

Reasons for the decision

• In the opinion of the BAG, the virtual options allocated to the plaintiff and vested at the time of termination of the employment relationship did not expire due to the ESOP expiry clauses upon termination of the employment relationship. The ESOP included general terms and conditions, and the ESOP expiry clauses violated Section 307 (1) sentence 1, (2) no. 1 BGB and therefore unreasonably disadvantaged the plaintiff.
• Review of general terms and conditions – no invalidity due to lack of transparency based on the use of the term ‘vesting’ and the associated need for interpretation: The BAG first recognised that the use of ‘vesting’ as a term for the vesting of options does not imply a lack of transparency in the general terms and conditions. Although the term is open to interpretation (‘vested’ vs. ‘exercisable’), the relevant interpretation is decisive solely for the content review of the clause.
• Remunerative nature of the options if non-remunerative periods for vesting are not taken into account: Vested virtual options are to be regarded as consideration for the work performed by the employee if, according to the ESOP, non-remunerative periods for vesting are not to be taken into account. Their irrevocable cancellation in the event of voluntary termination of the employment relationship would then contradict the basic idea of Section 611a (2) BGB, as it disregards the fact that the employee has already provided the consideration.
• Disproportionate hindrance to career advancement pursuant to Article 12 GG: In addition, clauses that provide for the immediate forfeiture of all vested options in the event of voluntary termination of employment or a disproportionately rapid forfeiture after termination of the employment relationship (in this case: stock options vested over a period of four years expire within two years of the termination of the employment relationship) would disproportionately impede the employee's career advancement, which is protected under Article 12 GG, by causing the employee to refrain from resigning; this is particularly the case if such resignation is caused by conduct on the part of the employer that is in breach of contract.
  

Consequences for practice

The ruling of the BAG, which is not entirely convincing in terms of content (see also) requires employers who currently or in future wish to retain their employees through long-term employee participation programmes and who, among other things, provide for vesting rules for this purpose, to adjust the vesting rules and, in this context, also the rules on the forfeiture of the relevant remuneration options in the so-called bad leaver/good leaver rules. If the provisions of the participation programme are to provide for a complete forfeiture of options in the event of an employee leaving the company during the vesting period solely on the basis of their own decision, the granting of options should generally be linked exclusively to the existence of the employment relationship at the time of vesting and not to any further conditions relating to the employee's work performance.

Compensation for gender discrimination in the withdrawal of a potential customer from the care of a consultant

In its judgment of 20 November 2024 (10 Sa 13/24), the Regional Labour Court Baden-Württemberg ruled that reassigning of a potential customer from the care of a consultant at the customer's request constitutes direct discrimination on the basis of gender within the meaning of Section 3 (1) of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG). If the employer complies with such a discriminatory customer request without taking protective measures, it violates its obligations under Section 12 (4) AGG and is liable for compensation under Section 15 (2) AGG, according to the Regional Labour Court.

Facts

• The plaintiff had been working in sales for the defendant construction company since 1992. Her remuneration included a variable remuneration component, according to which the plaintiff received a commission of EUR 16,000 for each construction project she successfully managed.
• In a construction project, the plaintiff was assigned as a consultant to the prospective buyer via the defendant's internal system. The prospective buyer expressed a desire to be advised by a male consultant rather than by the claimant, who was a woman.
• The regional manager responsible, who was the claimant's immediate superior, complied with this request and took over the advisory role himself; at the same time, the defendant agreed to grant the claimant the relevant commission if the construction project was successfully completed.
• The claimant felt that the change of advisor – even though it was made at the customer's request – was discriminatory on the grounds of her gender and contacted the company's AGG complaints office. The latter considered the defendant's aforementioned measure to be sufficient, but did not deny the discriminatory nature of the customer's request.
• The plaintiff claimed non-material damages for gender-based discrimination in accordance with Section 15 (2) AGG in the amount of six gross monthly salaries (EUR 84,300).
• The defendant moved to dismiss the action. It argued that these were merely statements made by a third party that were not attributable to it and that the transfer of responsibility to the regional manager was solely for the purpose of protecting the plaintiff. The Labour Court Freiburg dismissed the action. The Regional Labour Court Baden-Württemberg upheld the action on its merits, but only awarded compensation of EUR 1,500.
  

Reasons for the decision

• Direct discrimination: The court found that the plaintiff was treated less favourably solely on the basis of her gender by having the customer taken away from her and assigned to her male superior.
• Attribution: The regional manager's behaviour was also attributable to the defendant. The decisive factor was that he accepted the discriminatory customer request instead of rejecting it or considering less severe alternatives.
• Obligations under Section 12 (4) AGG: Employers must also protect employees against discrimination by third parties. In the opinion of the LAG, the defendant should have taken countermeasures and communicated the plaintiff's professional suitability to the customer. At the same time, the LAG recognised that employers are not obliged in this context to terminate a business relationship with such customers in the event of continued discriminatory requests, even after such unsuccessful mediation.
• No justification: There was no objective requirement under Section 8 AGG. Gender was not professionally necessary for the job of consultant.
• Amount of compensation: The court awarded the claimant compensation of EUR 1,500. In assessing the amount, it took into account the severity of the violation, the purpose of prevention, but also the defendant's actions in favour of the plaintiff (involvement of the AGG complaints office). The claim of EUR 84,300 was significantly excessive in this respect.
  

Consequences for practice

The ruling makes it clear that discriminatory requests from customers that relate to a characteristic listed in Section 1 AGG – in this case gender – should generally not be accepted without further consideration. Otherwise, there is a risk that the labour court deciding on the matter will assume direct discrimination against the employees concerned and that a claim for compensation will arise under Section 15 (2) AGG. Employers should discuss the context of discrimination with the customer in the initial stages of the specific opportunity/transaction, for example by informing customers about the professional suitability of the person concerned or by considering alternative solutions. The discussion must be documented in an appropriate manner. In addition, it may be advisable in individual cases to establish training courses on how to deal with discriminatory customer requests so that managers can respond in such situations in a legally compliant and prevention-oriented manner.