Employee has no Right of Access to Employment Dispute-related Case-file

Based on the GDPR, an employee had asked her employer to give her access to all personal data the employer had processed about her. The employer, however, had rightly refused to provide access to the records of the employer’s discussion with his advisor on the employment dispute with the employee as well.

At some point in time, a Court lawyer at a Court became incapacitated for work.
An employment conflict arose between the Court as the employer and the lawyer as the employee. The employer consulted the Council for the Judiciary on the employment conflict and Council for the Judiciary provided its opinion to the employer. After mediation, the employment contract was terminated by means of a settlement agreement.
During the negotiation process, the employee had requested access to her personal data. Subsequently, the employer made all personal data it had available to the employee for inspection, with the exception of the employer’s request for advice and the Council for the Judiciary’s advice.
Then, the employee then exercised her right to petition the employer to provide access to these documents as well. The examination of the petition was referred to a different Court than the one where the employee worked. That Court, however, rejected the request.
After the employee had lodged an appeal, the Court of Appeal stated first and foremost that the General Data Protection Regulation of the European Union (GDPR) gives everyone the right to request the person who is responsible for processing his/her personal data to provide him/her with access to these personal data. Within the meaning of the GDPR, also the request for advice and the advice belong to these personal data, according to the Court of Appeal.
Nevertheless, the Court of Appeal held the opinion that the employee had no right to have access to the request for advice and to the advice. Under the GDPR and the law that has further developed parts of the GDPR in the Netherlands, the right to access personal data can be limited if it is necessary and proportionate to safeguard the protection of the rights and liberties of others. According to the Court of Appeal, this can also concern the rights and liberties of the person who processes the personal data.
Since it concerned confidential documents that gave insight into the negotiating position of the employer in the employment conflict with the employee, the employer had the right to refuse access on the basis of the right to a fair trial, as protected by the European Convention on Human Rights, according to the Court of Appeal. The employer had a substantial interest in adopting a position in the employment conflict in freedom and seclusion. Therefore, according to the Court of Appeal, it was necessary for both the employer and the Council for the Judiciary to feel free to discuss the employment conflict in seclusion. Access to the personal data would disproportionately have affected the right to this undisturbed exchange of views. The Court of Appeal pointed out that the employer did not have the right to gain access to the way in which the employee had arrived at her position either. Therefore the refusal to grant access was proportionate.
Even after the employment conflict has been resolved, access can still be refused, since it also belittles the undisturbed exchange of views if the employer and the Council for the Judiciary in advance would have to take into account that access to the request for an advice and to the advice itself might have to be given afterwards.
Therefore, the Court of Appeal confirmed the earlier Court’s decision.
The employee did not reconcile herself with this decision and filed an appeal in cassation with the Supreme Court. The Supreme Court, however, rejected the appeal in cassation. The Supreme Court pointed out that the Charter of Fundamental Rights of the European Union safeguards the right to seek advice in taking a position in a dispute.

The right of access under the GDPR can be useful in an employment conflict, because the employer is required to provide a copy of all personal data the employer has processed about the employee. This allows the employee to obtain documents that may help in bringing legal proceedings against the employer or in defending against legal proceedings by the employer. In practice, however, this right is underutilized.
The Supreme Court's decision shows that the right of access does not extend so far that an employee can also get access to the correspondence between an employer and its lawyer or other legal adviser.