Labour law

Use of personal data in an employment law context

In its ruling on January 27, 2023, the Baden-Württemberg State Labour Court had to assess a complex issue relating to the use of personal data in an employment law context. The case concerned the dismissal of an employee, with the use of data from his work smartphone playing a central role.

Core issue: personal rights and data protection in the work context

  1. Personal rights and data protection: The case essentially revolved around the tension between the employee’s personal rights and the employer’s interests. The focus was on the question of the extent to which the employer may evaluate data from a work smartphone, which was also used privately, and use it in the process.
  2. Prohibition on the use of evidence: A key point of the decision was the prohibition on the use of evidence. The court ruled that the evaluation of the employee’s iPhone and the use of the information obtained in the trial constituted a serious infringement of his personal rights. As the smartphone was used for both business and private purposes, the employee had a legitimate expectation of privacy.
  3. Mix of business and private use: The mixed use of the smartphone increased the complexity of the case. The employee used the device for private and business purposes, which required a differentiated view of the data.
  4. Violation of Section 26 BDSG: The court found that the employer’s data collection in this case was disproportionate and violated the Federal Data Protection Act (BDSG). There was no consent from the employee and the data analysis should have been carried out within a more appropriate framework.

Decision of the court

The Regional Labor Court found that the termination of the employment relationship was invalid. It judged the evaluation of the data to be an infringement of the employee’s personal rights and ruled that the information obtained from this could not be used in the unfair dismissal proceedings. Furthermore, the ordinary dismissals were classified as not socially justified, as the employer was unable to prove that the plaintiff’s job had been permanently lost.


This decision emphasizes the need to protect the personal rights and data protection of employees, especially when it comes to the use of information from devices that are used for both private and business purposes. It emphasizes that employers must carry out a strict proportionality test when evaluating such data and comply with the relevant data protection laws.

German Lawyer at Law Firm Ferner Alsdorf
I am a specialist lawyer for criminal law + specialist lawyer for IT law and dedicate myself professionally entirely to criminal defence and IT law, especially software law. Before becoming a lawyer, I was a software developer. I am an author in a renowned commentary on the German Code of Criminal Procedure (StPO) as well as in professional journals.

Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
German Lawyer Jens Ferner (Criminal Defense & IT-Law)