Germany: The employer does not have to refrain from any critical comments regarding the existing works council or individual members thereof with regard to an upcoming works council election

In the run-up of the works council election at the employer, a meeting between the company’s managing director and the executive employees took place. In the course of this meeting, the managing director and the head of personnel criticized the “blockade policy” of the works council and asked the executive employees to look for suitable employees for a new works council. The managing director stated that anyone who again votes for the chairman of the works council “betrays the company”. In the following election the chairman’s list did not obtain the majority of the votes. Thereupon, several employees challenged the validity of the election of the works council in front of the labour court.

Pursuant to the German Works Constitution Act any attempt to obstruct or influence a works council election by inflicting or threatening any unfavorable treatment or by granting or promising any advantage shall be unlawful. Some courts and parts of legal commentary used to interpret this provision as a strict obligation of the employer and his executive employees to act neutral towards the works council and its members.

The Federal Labor Court now ruled that such interpretation of the law is too extensive, as a general neutrality obligation can neither be taken from the wording of the law nor is it necessary in order to secure the works council election. The provisions of the Works Constitution Act do not trigger a strict neutrality obligation of the employer as the inner freedom of the individual vote is sufficiently secured by the secrecy of the ballot. Otherwise, the risk that the election will be challenged in court would complicate the new works council’s activities.

This recent ruling of the Federal Labour Court is generally positive for employers. However, the statutory prohibition to obstruct or influence a works council election still stands. Employers should, therefore, remain cautious as there is often a fine line between permissible and prohibited actions.