Member Article

LAG Baden-Württemberg, judgement of 17.09.2020, 17 Sa 8/20

The unauthorized, deliberate deletion of operational data on the employer's IT systems represents a significant breach of duty and is generally suitable to justify a termination of the employment relationship without notice period.

Facts

The parties are in dispute about the validity of the extraordinary, alternatively ordinary, notice of termination pronounced by the employer.

In the course of a personnel interview, which was preceded by a warning for non-compliance with instructions, the employer suggested to the employee to terminate his employment contract. The parties did not agree on the details of a termination agreement. A few days after the personnel interview, the employer noticed that a considerable amount of data (approx. 7.48 GB) had been deleted from his server. The employer's IT infrastructure provides for each employee to store his files on the server in a directory assigned to the employee. After hearing the employee, the employer terminated the employment contract by extraordinary, alternatively ordinary termination due to extensive deletion of operational data.

The labor court considered the alternatively pronounced ordinary termination to be justified. Both parties to the trial appealed against this.

Decision

The LAG Baden-Württemberg considered the extraordinary employer termination to be effective.

The deletion of operational data on the employer's server constitutes an important reason for extraordinary termination without notice. The contractual secondary obligations of an employment relationship resulting from § 241 para. 2 BGB include, among other things, that the employee does not deny his employer access to operational data or makes it impossible. The provisions of contract law shall apply to the employment relationship accordingly, so in accordance with § 667 BGB the employee is obliged to hand over the data which he has been assigned to perform work, regardless of the stage the files are in (concept, draft, final version). Unauthorized deletion of this data would constitute a significant breach of duty, so that continuation of the employment relationship until the end of the notice period would be unreasonable for the employer. It is irrelevant whether the deleted data can be restored or not. Generally, there is no need for a warning because the employee cannot assume that the deletion will be accepted by the employer. If data are no longer needed, for example after completion of individual projects, in principle data can be deleted during the current employment relationship. In the present case, however, a considerable amount of data was deleted after the employer had expressed his termination request to the employee. According to the LAG Baden-Württemberg, there could hardly be a clearer expression of the willingness to turn away and to "leave scorched earth". Also the balancing of interests turned out to the disadvantage of the employee. On the one hand due to the considerable amount of data that was at issue, on the other hand because of the substainable disruption of the relationship of trust, because the employer had to expect that the employee would react in a similar way in other potential conflict situations. In addition, the employment relationship had not been without objections in the past (warning letter).

Practical advice

The legally binding decision of the LAG Baden-Württemberg makes clear that the jurisdiction does not classify the deletion of operational data as a trivial matter. Thus strengthens the protection of employers against the risk that employees can cause considerable damage in the notice period by deleting data. In practice, however, employers are always advised to make regular back-ups.