In co-determined companies, background checks rarely fail because of data protection — they fail because the works council was bypassed. The right strategy is therefore to involve co-determination early and in a structured manner rather than getting blocked. Those who properly address the participation rights under §§ 94, 95 and 87 (1) no. 6 BetrVG (German Works Constitution Act) and anchor the screening in a works agreement even gain an additional legal basis: Art. 88 (1) GDPR expressly recognises collective agreements as a basis for processing employee data.
Which co-determination rights are affected
Three provisions of the BetrVG must be kept apart when it comes to screening — they have different scopes and different legal consequences:
- § 94 BetrVG — personnel questionnaires: Standardised collection of applicant and employee data (questionnaires, self-disclosures, consent forms in the screening process) requires the works council’s consent.
- § 95 BetrVG — selection guidelines: Anyone who stipulates that certain check results co-determine hiring, transfer or dismissal is creating selection guidelines — these, too, are subject to consent.
- § 87 (1) no. 6 BetrVG — technical devices: Software-supported screening of employees can trigger the co-determination right regarding technical devices “intended” to monitor conduct or performance. The scope of this provision is disputed for screening constellations; the case law of the Federal Labour Court (Bundesarbeitsgericht) traditionally interprets the concept of monitoring capability broadly, so in case of doubt you should assume that co-determination is required.
In addition, § 80 (2) BetrVG applies: the works council may demand timely and comprehensive information to perform its duties — including about planned screening processes.
Why bypassing is more expensive than involving
Screening introduced without the works council stands on shaky ground: the works council can enforce the cessation of measures that violate co-determination, and results from a procedure that violates co-determination are only of limited use in a dispute. The project loses months — and the trust needed for the genuinely sensitive cases. Add to that the external effect: a dispute over covertly introduced screening processes damages precisely the relationship of trust within the workforce on which an integrity programme depends. Conversely, on the subject of integrity the works council is rarely the natural adversary: the workforce, too, has an interest in leadership positions and security-critical roles being filled cleanly. Those who disclose the screening process — categories, sources, triggers, retention periods — in practice end up negotiating over the how, not the whether.
The works agreement as a legal basis under Art. 88 GDPR
Involvement is not only an obligation but an opportunity: under Art. 88 (1) GDPR, collective agreements can create more specific rules for the processing of employee data. A well-crafted works agreement on integrity screening thus gives the screening an independent, precisely tailored legal basis — particularly valuable now that the viability of § 26 BDSG (German Federal Data Protection Act) as a general clause is in doubt (background in our article on the GDPR legal bases of pre-employment screening).
Model key points for the works agreement on integrity screening
The agreement should regulate these points — the list also works as a basis for discussion that you can forward directly to your works council:
- Scope of application: Which position groups are screened, under which risk classification?
- Check categories and sources: An exhaustive catalogue (e.g. identity, registers, sanctions lists, adverse media) — anything not listed is not checked; on the limits regarding social networks, see our article on social media screening.
- Triggers and cycle: Hiring, role change, cause-related repetition — no continuous monitoring without cause.
- Procedure: Information of the data subjects, human final decision, handling of adverse findings, right to be heard.
- Retention periods and deletion concept as well as access rights.
- Involvement of the works council in changes to the catalogue or the software used.
Recommended course of action
Involve the works council before you select a provider — not after. Disclose the complete screening process, negotiate the key points above in a works agreement and document the consents under §§ 94, 95 BetrVG. Plan realistic timeframes: a viable agreement typically takes several meetings, but afterwards it is a stable foundation for years. A provider that works with defined categories, dated sources and human final review (Art. 22 GDPR) makes this transparency easy for you — how Indicium’s screening process is structured is shown in detail in the software report, and we are happy to walk through it in a demo together with your works council.
This article provides general information and does not constitute legal advice.