Germany: A voluntary group-wide employee survey on work environment and working conditions is not subject to the co-determination of the works council

The employer is a cardiology center, which is a subsidiary of the university hospital (parent company). The hospital decided to carry out a group-wide survey among all employees using a standardized questionnaire. The questionnaire guaranteed the anonymity of the participants and indicated that the participation was voluntary. It contained more than 100 questions, for example regarding the employees’ work environment and working conditions.

Upon request of the local works council established at the cardiology center, the Labor Court issued a preliminary injunction that ordered the employer to instruct the parent company to refrain from the employee survey with regard to the employees of the cardiology center as long as the works council has not given its consent to the employee survey or such consent has been replaced by the Labor Court. Due to this ruling, the employee survey was not carried out in the cardiology center. The State Court confirmed the ruling of the Labor Court.

However, the employer’s appeal to the Federal Labour Court was successful. The Federal Labor Court ruled that the employee survey is in any way not subject to co-determination of the local works council, as it was carried out group-wide by the parent company. Due to this structure of the measure, it may at most be subject to co-determination of the group works council established at the parent company, but not the local works council in place at the subsidiary.

Aside from this formal argument, the Federal Labour Court further reviewed whether any co-determination rights exist on any works council level, local or group, and found that this is not the case. Pursuant to the German Works Constitution Act the works council generally has a right of co-determination with regard to health protection measures, including risk assessments at the workplace. However, due to the anonymous and voluntary nature of the survey and its group-wide scope, the court found that the survey does not allow the employer to draw conclusions relating to the concrete working conditions at specific workplaces in the cardiology center and is, therefore, not within the scope of the co-determination right.

The court also found that the questionnaire used by the hospital does not qualify as a personnel questionnaire in terms of the Works Constitution Act, which would require prior approval of the works council. The co-determination right of the works council with regard to personnel questionnaires serves the purpose of securing the employees’ personality rights. As the questionnaire used in the present case was anonymous and participation in the survey was voluntary, the court found that there was no risk of any violation of employee’s personality rights.