Protection of works councils in Germany by restrictions to the right of dismissal

Members of the works council (Betriebsrat) must be free and independent in doing their work. Therefore the employer may not terminate the employment contract of a works council by an ordinary dismissal during their term and for one year afterwards. A summary dismissal is only possible with an “important reason” (“wichtiger Grund”) and the consent of the works council committee. This article explains the protection of works councils during and after their term in more detail.

Special protection for works council members against dismissals

The special dismissal protection for works council ensures the free and independent work in their office. Works councils should always do their job in the interest of employees in order to achieve better working conditions. Therefore, the employer should not be able to pressurize or threaten the works council with the possibility of a dismissal.

No ordinary dismissal during or after the term of office

Employers cannot issue an ordinary dismissal (i.e. a dismissal with an agreed notice period) to a works council during the term of office or in the year afterwards.¹

Exception: Summary dismissal

During the term of office and for a year afterwards, an employer can only dismiss a works council with immediate effect (summary dismissal), if there is an “important reason”.² Such a reason (“wichtiger Grund”) only exists where the misconduct is so serious that it would be unreasonable to continue the employment relationship until the end of the notice period. 

There are some specific rules for works councils:

• If the serious misconduct relates to the employee’s contractual duties, the same standards apply as for any other employee. Works council members must be neither penalized nor privileged. That means: the employer has to prove the serious misconduct, written warnings and a balancing of interests. Examples of summary dismissal of works council members from the case law: false expense claims; manipulating time records; willingness to make false statements against the employer; deliberately untrue claims about superiors; faked sick leave; secretly recording personnel meetings.
• If the misconduct solely relates to the exercise of the works council’s office, the employer cannot issue a summary dismissal. The employer must apply for a “removal-from-office” procedure (“Amtsenthebungsverfahren”) in terms of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG). Examples: insults or physical attacks against other works council members during a meeting; refusing to cooperate with other works councils due to memberships in different trade-unions; refusing to take on works council duties; passing confidential information to third parties.
• Whether it is reasonable to continue the employment until the end of the ordinary notice period is based on the notice period that applies without the works council office. 

If the employer wants to issue a summary dismissal, it must happen in writing. Further, it must take place within two weeks of the employer learning of the relevant facts.

Additional hurdle: consent of the works council 

Before a summary dismissal of a works council, the employer has to obtain the consent of the works council committee. Simply consulting the council is not enough. The committee must explicitly agree to the summary dismissal.

If the committee refuses it’s consent, the employer must go to the Labour Court to apply for the substitution of the consent.

The employer cannot issue a summary dismissal until there is a consent. It must either come from the works council committee or the Labour Court. In practice, that can take some time. After a summary dismissal, the works council can file a claim against the unfair dismissal within the three-week deadline.³

Business closure and protection against dismissals

If the employer closes the whole business, there is only a limited protection for works councils against a dismissal. The employer can dismiss a works council based on operational grounds with the required notice period. The employment relationship can end at the earliest when the business closes. The statutory, collectively or contractually agreed notice period applies. The employer has to comply with longer periods (e.g. a 3-months period), even if the closure takes place before the time.

An earlier dismissal is only permitted if there are compelling operational reasons. Example: there is no work at all, neither works council duties nor any other work. Exception: If the works council is already fully released from his original work duties (“freigestellte Betriebsratsmitglieder”), the employer can only dismiss them on the date of the actual business closure.

In this case, the employer must only consult the works councils committee without getting a consent.

If only a department of the business closes, the employer has to transfer the works council to a different department. If that is not possible on operational grounds, the above rules regarding the complete business closure apply.

Start and end of special protection

The special protection for works council members begins with the announcement of the election result.

The protection ends one year after the four-year term of office expires. The prolonged protection is a “cooling-off period”. It has the purpose that employers cannot simply dismiss works councils right after their term ends, just because there were conflicts before. Note: If the employer wants to summarily dismiss a former works council within the year after the term ends, the works council committee does not have to give an explicit consent.

The special dismissal protection must exist at the moment the employee receives the dismissal. At that point, the employee must already have been elected to the works council. An election candidate has special protection from the moment the name appears on the nomination list. It ends six months after the election result.⁴ If the nomination is only after the dismissal, no special protection applies.

Protection for substitute members

If a works council member leaves the council permanently, a substitute member takes the place. The same applies for temporary cover when a regular member is unavailable (e.g. due to illness or leave). 

The special protection during the term of office applies once a substitute permanently joins the council. Alternatively, for the full duration of any cover, regardless of whether the substitute actually did any council work. The protection after the term, however, only applies if the substitute actually did council work during that period. The reason: if the substitute was never active, there is no need for a “cooling off” period from the employer.

Severance pay for a works council

An entitlement to severance pay follows the general rules:

• There is no special statutory severance entitlement for works councils. The employer may not discriminate or privilege council members.
• An entitlement can arise under § 1a KSchG. This requires an operational dismissal, no legal proceedings and a notice in the dismissal pointing out the entitlement.
• A severance pay can also arise from a collective bargaining agreement or a social plan. The latter is a binding agreement between employer and works council committee to mitigate the disadvantages of the dismissal.
• A works council member and the employer can also negotiate a severance pay on a voluntary basis. The special dismissal protection works in favour of the works council and will push up the amount. In case of regular conflicts, the employer has a strong interest in a termination agreement. In practice, employers often struggle to prove all the dismissal requirements in court. Especially, where the real motive for the dismissal is not the employment itself but the good work by the council.

Obtaining the consent of the works council committee is even more difficult for the employer. It might lead to conflicts within the staff and even to a more difficult cooperation with the committee. Finally it means long and expensive court proceedings. In this situation, employers are therefore usually willing to pay far more severance pay than usual. Tip: It is always advisable for the works council member that they ask for the support of their their trade union, a specialist employment lawyer, or both.

Frequently asked questions (FAQ)

1. Section 15 KSchG ↩︎
2. Section 626 BGB ↩︎
3. Sections 4, 7 KSchG ↩︎
4. Section 15 III KSchG ↩︎